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T h e Democratic
AND
T h e Authoritarian
State
ESSAYS IN POLITICAL AND LEGAL THEORY
B y F ra n z Neum ann
ED ITED AND WITH A PREFACE BY
Herbert Marcuse
The Free Press of Glencoe

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Copyright 1957 b y T he F ree Press, a Corporation
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CON TENTS
Preface vii
1. Approaches to the Study of Political Power 3
2. T h e Change in the Function of Law in M odern Society 22
3. Types of Natural Law 69
4. M ontesquieu 96
5. On the Lim its of Justifiable Disobedience 149

• 6. T h e C oncept of Political Freedom 160
7. Intellectual and Political Freedom 201
8. O n the Theory of the Federal State 2 16
9. N otes on the T heory of Dictatorship 233
10 . Econom ics and Politics in the Tw entieth Century 257
1 1 . Anxiety and Politics 270
T h e W ritings of Franz Neum ann: A Selected Chrono
logical Bibliography 30 1
P R E FA C E
O n S eptember 2, 1954, Franz Neumann died in an automobile acci

dent in Switzerland. He was fifty-five years old.
He was in a rare sense a political scholar. From the beginning, his
theoretical work was animated by a political interest; for him, politics
was a life element, and he consistently tried to fuse his academic work
with practical activity. After graduating from the University of Frank
furt, where he was greatly influenced by his friend and teacher, Hugo
Sinzheimer, the founder of German labor law, he taught at the Acade
my of Labor from 1925 to 1927 and then settled down in Berlin as a
labor lawyer. From 1928 on, he taught at the HochschuJe fiir Politik
in Berlin. The fate of the Weimar Republic, the decline of democratic
socialism, the struggle against the Nazi regime became part of his
daily existence. He worked as legal adviser for the executive of the So
cial Democratic Party, was arrested in April 1933, but was able to es
cape from Germany in May. Franz Neumann was one of the first whom
the Hitler government deprived of citizenship. The exile did not
weaken his intense political passion: he tried to advise the anti-Nazi
emigration, to help wherever he could, in practice and in the theoreti
cal orientation. At the same time, he studied at the London School of
Economics, chiefly under Harold Laski, whom he admired and who
became his friend.
In 1936, Franz Neumann came to the United States and joined the
Institute of Social Research, then affiliated with Columbia University
in New York. In his relation to the Institute, to its director, Max
Horkheimer, and to its staff, theoretical, political, and personal ties
remained inextricably intertwined; it was Frederick Pollock of the In
stitute who, at the time of Neumann’s death, was in Switzerland and
spoke at his funeral.
(vii)
(viii) Preface
The Institute had set itself the task of elaborating a theoretical con
ception which was capable of comprehending the economic, political,
and cultural institutions of modern society as a specific historical struc
ture from which the prospective trends of development could be de
rived. This undertaking was based on certain notions common to all
members of the staff, notably that a theory of history was the prerequi
site for an adequate understanding of social phenomena, and that such
a theory would provide the standards for an objective critique of given
social institutions which would measure their function and their aims
against the historical potentialities of human freedom.
In the Institute of Social Research, Neumann wrote his Behemoth,
an attempt to identify the economic and political roots of totalitarian
ism in contemporary industrial society as well as in the historical con
ditions of its rise in Germany. During his work in the Office of Stra
tegic Services and later in the Department of State (1942-1946), Neu
mann applied the insights gained in these studies to the analysis and
anticipation of German developments. He devoted most of his efforts
to plans for a democratization of Germany which would avoid the
failures of the Weimar Republic; he tried to demonstrate that denazifi
cation, in order to be effective, must be more than a purge of person
nel and an abolition of Nazi legislation—that it must strike at the roots
of German fascism by eliminating the economic foundations of the
anti-democratic policy of German big industry. Neumann saw that the
efforts to attain this objective failed, but he continued to work for
strengthening the genuinely democratic forces in Germany in the
narrow field still open for such efforts. As American liaison man with
the Free University in Berlin, he contributed greatly to the rise of this
institution and he was instrumental in the establishment of the Insti
tute of Political Science in Berlin. lie re-established contacts with the
German trade unions and the Social Democratic Party and advised
American and German friends and officials on the aggravating politi
cal situation in the divided country.
After the war, Neumann joined the faculty of Columbia Univer
sity, whose Government department became a second home to him.
His personality and his ideas gained him the friendship of his col
leagues and of his students; he communicated to them his conviction
that political theory was not simply a sum total of opinions and evalu
ations, but the indispensable foundation of politics. For politics de
Preface w
cided the fate of humanity, and the decision grew out of the objective
laws which governed the historical process. This conviction was
strengthened by the experience of the fascist and post-fascist era: the
defeat of democratic socialism and the general trend toward totali
tarianism. To Neumann this experience caused a wound that never
healed. In his last years, he tried to find the answer to the terrible
question why human freedom and happiness declined at the stage of
mature civilization when the objective conditions for their realization
were greater than ever before. He worked on a comprehensive study of
dictatorship—its forms, functions, and its social roots. He saw that the
traditional opposition of democracy and totalitarianism was inade
quate in the face of the historical facts. The work was not completed,
but several articles, assembled in this volume, show the direction in
which he searched for the answer. Compared with the Behemoth, the
emphasis on the economic determinants has receded, but only in or
der to place these determinants in a more concrete framework. He col
lected much historical material related to the various forms of dic
tatorship, material which was to deepen the understanding of present-
day totalitarianism. One of the problems with which he was most
concerned was the support for dictatorship from among the under
privileged masses. In this connection, he re-examined the development
of the modem labor movement, especially the dissolution of the
Marxian tradition in the Social Democratic parties and trade unions.
His last undertaking in this field was a study, on the spot, of the ide
ology and practice of Mitbestimmungsrecht (co-determination of labor
in management) in the postwar German industries of the Ruhr region.
He was appalled at the decline of political thought and action among
organized labor, but he also knew that it was not explained simply by
disillusionment, apathy, corruption. There were structural changes in
contemporary society whose theory had still to be elaborated. And
this theory, in turn, was to furnish guidance for the politics of freedom.
Political theory remained to him what it was at the beginning: an in
dispensable weapon in the struggle for a better world. He was an intel
lectual in the proudest sense of the word, one of those whose disap
pearance makes the present poorer and less hopeful.
Most of the papers collected in this volume were chosen and pre
pared by Franz Neumann himself. I have added the following:
M Preface
“ Notes on the Theory of Dictatorship/' Although this is a very
fragmentary manuscript, it shows the direction in which Neu
mann's theoretical efforts were developing during the last years of
his life.
“ Intellectual and Political Freedom," after a speech given by Neu

mann within the framework of the Bicentennial of Columbia
University in Bonn, Germany. The paper supplements the essay
on “ The Concept of Political Freedom."
“ Economics and Politics in the Twentieth Century," the abridged

version of a speech given at the Deutsche Hochschule fur Politik,
19 51, in Berlin. The speech seems to me a good example of Neu
mann's concrete political thinking.
W ith the exception of minor editorial changes, especially in “ Anxiety

and Politics," the available text was retained even where it did not exist
in final form. This involved some overlappings and repetitions, which
could not be eliminated without breaking the context of the respective
articles.
I wish to thank Julian Franklin and Peter Gay, both of Columbia
University, for editing and translating “ Notes on the Theory of Dic
tatorship" (Julian Franklin), “ Intellectual and Political Freedom"
(Peter Gay), and “ Economics and Politics in the Twentieth Century"
(Peter Gay).
Acknowledgment is made to the following publishers for their kind
permission to reprint previously published material: Columbia Law
Review for “ The Concept of Political Freedom," 1953; Columbia Uni
versity for “ On the Theory of the Federal State," 1955; Hafner Pub
lishing Company for Introduction to Montesquieu's The Spirit of the
Laws, 1949; Harper and Brothers for “ On the Limits of Justifiable Dis
obedience," from Conflict of Loyalties, ed. R. M . Mclver, 1952; Politi
cal Science Quarterly for “ Approaches to the Study of Political Power,"
1950; and the University of Chicago for “ The Change in the Function
of Law in Modern Society," 1939.
Herbert Marcuse
Brandeis University
Waltham, Mass.
September, 1956
The Democratic and The Authoritarian State
[chapter 1]
<[ <[
A P P R O A C H E S TO THE S T U D Y OF
P O L IT IC A L P O W E R *
I t is difficult, perhaps impossible, to add any new idea to a discussion

of political power. To be sure, there are few books so named; but al
most everything written in the field of the political sciences deals in
one way or another with the subject. The purpose of this essay is not
to develop a new theory of political power but rather to lay bare the
approaches to its study, particularly for younger students.
I. Political Power and Psychology
Political power is an elusive concept.1 It embraces two radically dif

ferent relations: control of nature, and control of man.2 Power over
nature is mere intellectual power. It consists in man's understanding
of the lawfulness of external nature for the ultimate purpose of sub
jecting external nature to man’s needs.3 It is this accumulated knowl
edge which is the basis of the productivity of any given society. This
power is powerless. It does not involve control of other men.
Political power is social power focused on the state. It involves con
trol of other men for the purpose of influencing the behavior of the
state, its legislative, administrative and judicial activities. Since politi
cal power is control of other men, political power (as contrasted with
power over external nature) is always a two-sided relationship.4 Man is
not simply a piece of external nature; he is an organism endowed with
reason, although frequently not capable of, or prevented from, acting
* Reprinted from Political Science Quarterly, V ol. L X V , N o. 2, June i 95 °» PP-
16 1-18 0 .
(3>
(4) Approaches to the Study of Political Power
rationally. Consequently, those who wield political power are com
pelled to create emotional and rational responses in those whom they
rule, inducing them to accept, implicitly or explicitly, the commands
of the rulers. Failure to evoke emotional or intellectual responses in
the ruled compels the ruler to resort to simple violence, ultimately to
liquidation.
The two-sided character of political power already marks political
science off from natural science. It makes it impossible (even if it were
desirable) to measure power relationships as one measures the behavior
of external nature. The variations of the power relationships are num
berless. One may classify and describe them, but one cannot measure
them.
Political power is not comparable to the category of energy in
physics. Nor is power the sole category of political science.5 Politics is
not merely the art of getting something in a certain way regardless of
the what and of the how.6 The trend to equate politics with power
politics goes back to Machiavelli and appears to have become the pre
dominant trait of American and, perhaps, of modern political science
in general. Politics is viewed as a purely technical concern. “ Values”
(the term is used only provisionally) are then mere personal prefer
ences; valid if they work, invalid if they fail. History is then quite mean
ingless. It is an indifferent repetition of the endless struggle of “ in
groups” versus “ out-groups.” It is thus reduced to mere chronology, a
file of illustrative materials for so-called hypotheses or, at best, is gov
erned by what Machiavelli called Fortuna, the luck of the participants
in the struggle.7
The theoretical basis of this approach to politics and political science
is usually psychological, as Machiavelli has already developed it. Men
are the same throughout history. They have certain stable traits, and
all, or almost all, are equipped with “ power drive,” an uncontrollable
and irrational impulse for power. From this assertion are then derived
such facile half-true generalizations as the famous statement of Lord
Acton: “ Power tends to corrupt, absolute power corrupts absolutely.” 8
This is not to imply that the psychology of power has no place in
political science. Its significance is great, but not decisive. Its contribu
tion is twofold. First, it leads to the realization that the optimistic
theories of human nature are one-sided and thus false. Man, although
endowed with reason, frequently knows not—or is not permitted to
Approaches to the Study of Political Power (5)
know—what his true interests are. This rediscovery of ancient truths is
particularly the merit of the materialistic psychology of Freud. Sec
ondly, psychological techniques permit us to describe in concrete and
convincing terms the personality structures most capable of exerting
or of suffering power. But psychology cannot go beyond concretization
and description. It cannot supply a theory of political power. The ac
tion of each man is as much the result of the environment as it is the
manifestation of a personality structure. Indeed, personality itself is
historically conditioned. To the psychologist, the environment is a
mere “ stimulus” of the individual act.9 To the political scientist, it is
one element in the total setting of political power.
The present orientation of psychology, besides, tends to make it
simply a technique of rule, of maintaining and strengthening power
relationships, an instrument of manipulation of the masses by the
elite.10
The rejection of the psychological approach involves in its positive
aspect the view that politics (and thus history) is not simply a struggle
of power groups for power, but an attempt to mold the world accord
ing to one's image, to impress one's view upon it. The historical process
has a meaning. Provisionally, we may accept the traditional pre-posi-
tivistic formulation that politics is the struggle of ideas as well as of
force.
II. Attitudes Toward Power

Consciously, or unconsciously, every student of politics has a specific
attitude toward political power. It is this attitude which determines
one's approach to all problems of political science. The valuative
premises must be made clear so that objective analyses may be possible.
The soul searching of the political scientist may be facilitated by a
classification of the various attitudes exhibited in the history of politi
cal theory. The classification presented here is only suggested and is
not meant to imply that there are no better and more convincing clas
sifications.
1. For Plato and Aristotle, political power is more than a separate
function of the organized community. It is the community. Political
power is the total power of the community, distinguished from other
relationships merely by its techniques. There is, in this view, no dis
tinction between state and society, economics and politics, morals and
politics, religion and politics, culture and politics. Man and citizen are
equated. Every activity of the community and of its citizens is political.
Only through political action can the citizen attain his fulfillment; only
through politics does he become man.
2. To this, there is radically opposed what I shall call the Augus-
tinian position. Politics is evil; political power is coercion, evil in origin
and purpose. It is “ unnatural” that man rule over man. Only at the
end of history with the advent of the Kingdom of God can and will
coercion be dispensed with. From this philosophy derive two radically
different, and yet inherently related, attitudes: that of total conform
ism and that of total opposition to political power. If politics is evil,
withdrawal is mandatory. Forms of government and objectives of po
litical power become irrelevant. Salvation can be attained through
faith, and the earthly life should be a mere preparation for it. Monasti-
cism is the first consequence. By the same token, however, the demand
for the immediate destruction of politics and the establishment of a
Kingdom of God may equally be supported by the Augustinian prem
ise. The Anabaptist movement was perhaps the most striking mani
festation of the total rejection of society.
3. H ie radicalism of St. Augustine is, of course, “ impractical.” St.
Thomas introduces what may be called a commonsense attitude
toward political power. Power is not unnatural since hierarchic rela
tionships already existed among the angels. Yet the attitude toward
political power is not unambiguously positive. It is not only hedged
in by many restraints but also, in some rather unclear way, subordi
nated to spiritual power operating indirectly through various levels of
law.
4. It is this climate which prepared the way for the liberal attitude.
Its sole concern is the erection of fences around political power which
is, allegedly, distrusted. Its aim is the dissolution of power into legal
relationships, the elimination of the element of personal rule, and the
substitution of the rule of law in which all relationships are to become
purposive-rational, that is, predictable and calculable. In reality, of
course, this is in large measure an ideology tending (often uninten
tionally) to prevent the search for the locus of political power and to
Approaches to the Study of Political Power (y)
render more secure its actual holders. Power cannot be dissolved in
law.11
5. Not to be confused with liberalism is the Epicurean attitude
toward politics. In contrast to the Platonic-Aristotelian conception,
politics is a separate business of society, clearly distinguished and dis
tinguishable from all other activities. But it is a complete matter of in
difference how it is organized, who exerts it, for what purposes it is
used. Any power is justified which maintains that minimum external
order of society which permits the individual to go on with his life.
6. In its psychological consequences, Epicureanism is sometimes
closely related to the anarchistic approach. To the anarchist, political
power is evil, society good; hence it is possible to organize a society
without politics. As in Augustinism, conformism or putschism may fol
low. Conformism: one should not dirty one’s hands by participation in
politics; putschism: one can establish an associative society at any
time that man wills it.
7. Marxism shares with anarchism and Augustinism the belief that
political power is not a natural but a historical phenomenon. In con
trast to anarchism, and with Augustinism, however, it believes it to
be a necessary historical phenomenon, but the necessity is limited (in
contrast to Augustinism) to one historical phase through which man
kind must pass before the classless society (a society without politics)
can be established. The remedy against political power (again against
the anarchists) is more and highly concentrated political power, skill
fully used to smash political power (dictatorship of the proletariat).
The Marxist thus has a positive approach to political power up to the
establishment of a classless society.
8. Marx shares this positive approach with Rousseau. For the latter,
political power is at once comprehensive and nonexistent. It is all-
encompassing because the organized community (as in Plato and Aris
totle) embraces all activities of man, economics, culture, religion; non
existent because of the alleged identity of rulers and ruled in the gen
eral will. It is precisely this dual attitude toward political power which
makes Robespierre’s theory and actions understandable.
9. The liberal democrat shares with the total democrat a positive at
titude toward political power which appears essentially as a rational in
strument to be used for desired and desirable ends. Yet the fear of the
liberal prevents him from accepting the total politicizing of life and
causes him to insist on the separate character of political power. But
the consistent liberal democrat is not, and cannot be, solely concerned
with the erection of fences around political power. He is increasingly
concerned with the potentialities of a rational use of political power.
This (or any other) typology of the attitudes toward political power
enables us to discover contradictory statements often of a hypocritical
or demagogic nature and to arrive at a consistent approach to the study
of the power phenomenon. If a scholar or politician demands, in the
same breath, the exclusion of dissenters from political participation
and the inviolability of private property from governmental intrusion,
we have before us a mixture of two attitudes: that of Plato-Rousseau,
and that of liberalism.
The result is not a “ new” attitude toward power but a propagandis
t s statement. Our typology of attitudes readily reveals that it contains
contradictory positions. It is the duty of the critical student to remove
such inconsistencies from his own thinking, to expose them when they
appear in the statements of others, and to become aware of the prem
ises of his own position.
III. The Significance of Political Power
Once this self-examination is completed, the significance of political

power should be squarely faced. No society in recorded history has ever
been able to dispense with political power. This is as true of liberalism
as of absolutism, as true of laissez faire as of an interventionist state.
No greater disservice has been rendered to political science than the
statement that the liberal state was a “ weak” state. It was precisely as
strong as it needed to be in the circumstances. It acquired substantial
colonial empires, waged wars, held down internal disorders, and stabi
lized itself over long periods of time.
But the methods applied by those who wield power and the scope
of its application vary, of course. And it is precisely this problem that is
of major significance for the political scientist. Formally, the methods
range from the marginal case of killing to the marginal case of educa
tion.12 Three basic methods are at the disposal of the power group:
persuasion, material benefits, violence. Violence is probably most ef
fective as a short-range method, but little effective as the principal
Approaches to the Study of Political Power (g)
method of maintaining power over long periods since it compels the
group (particularly under modern conditions) to intensify the methods
of violence and to extend it to larger sections of the ruled. The most
efficient (that is, cheapest form) is, of course, persuasion. Yet all three,
persuasion, benefits, violence, are always present in all forms of govern
ment.13 And it is precisely the mixture of the three elements which
constitutes another major problem for the political scientist. I shall
attempt to clarify the meaning by the formulation of some sociological
generalizations.
Sociological Generalization 1 —The significance of persuasion grows
with the growing complexity of society. It is, perhaps, legitimate to
consider persuasion, as a rule, to be merely a form of violence, ‘Vio
lence committed against the soul” as the French historian of Catholic
England under Henry V III formulated it.14 Through persuasion, the
rulers achieve a marked degree of habituation of the ruled so that their
reactions assume an almost automatic character. The success of per
suasion will, however, depend upon the scope and duration of the
propaganda and the skills by which stereotypes are produced. There is
little doubt that persuasion is a more efficient and cheaper exercise of
political power than the employment of large police forces, armies and
militias.
Sociological Generalization 2—The increasing complexity of society
requires that the rulers increasingly utilize arcana, secret techniques of
rule. The struggle for power is a real struggle aiming at the control of
the state machine. In any struggle, however, tactical decisions can be
effectively made only in secret. Secrecy, in turn, can be preserved only
by small numbers. It is this very fact that necessitates the rise of oli
garchies within mass movements. Max W eber15 and Robert Michels16
(and probably many others) have drawn attention to this phenomenon,
and Max Weber, besides, correctly stressed the superiority of small over
large numbers because of the significance of secrecy for any rule de
signed to be more than temporary.17 It is precisely for this reason that
the rule of the few becomes particularly marked in those mass organi
zations which, more than other movements, are essentially devoted to
democracy: the trade unions and the social democratic (labor) parties.
The reason is obvious. The opponents of these movements are usually
numerically few, but individually powerful, subjects who are thus able
to keep their strategic and tactical decisions secret. The mass organi
zation, faced with such opposition, must, in turn, resort to the con
struction of forms of rule which also permit secrecy. Aristocratic rule
thus becomes a sociologically necessary implementation of democratic
movements.18 It is, therefore, no accident that the growth of oligarchies
within mass movements was first studied in the example of the Ger
man Social Democratic party.
Lenin made a virtue of this necessity. Ilis vanguard theory of leader
ship frankly replaces the traditional democratic conception of social
democracy by an aristocratic one.
Sociological Generalization 3—The higher the state of technological
development, the greater the concentration of political power. The
legal conception of ownership is quite irrelevant for an analysis of this
phenomenon. It matters not who owns a technical unit: an individual,
a corporation, a state, any other organized society. The social organi
zation of large technical units may, of course, be a co-operative one. In
every social group which is based on struggle, however, the organiza
tion will, of necessity, be hierarchic. The larger the size, the more
hierarchic it becomes. Growing hierarchic trends lead to concentration
of power at the top. The relation between social and political power
will be analyzed at a later place.
Sociological Generalization 4—With the growing complexity of so
ciety and its increasing industrialization, the significance of political
power in the social process grows. Concentration of power (in the
economy, in society, in culture) makes for more rigidity. A process of
social petrifaction sets in and prevents the system from achieving a
semiautomatic balance. The equilibrium, once disturbed, can be re
stored only through active intervention of the political power. Control
of the state then becomes more precious than ever before.10
Sociological Generalization 5—The same trend also produces a
greater separation of political power from social power—a phenomenon
that shall concern us later.
Some or all of these generalizations are subject to challenge. They
are not meant to be exhaustive, but merely point the direction to a
proper study of political power. That they produce uneasiness is to be
expected. At first sight it seems difficult to reconcile them with the
theory of democracy. If by democracy is understood that mixture of
diverse elements, of Locke and Rousseau, St. Augustine and St.
Thomas, which is usually called “ democratic theory," a reconciliation
Approaches to the Study of Political Power ( 11)
of those realistic trends with the doctrine is, indeed, impossible. W e
are not now concerned with the problem of democratic theory. For the
present it suffices to say that an adequate democratic theory will have
to deal with these problems.
IV. Roots of Political Power

Three questions have to be faced in the analysis of the roots of
political power: the conceptual framework has to be established; the
institutional setting to be clarified; and the historical process to be
understood which leads to a change in institutions and different atti
tudes toward power and to a different political behavior. For the an
cient historians, this was no problem. Political power derived squarely
from economic power, particularly from the control of land. Changes
in ownership, the emergence of new modes of production, and so on,
created new sources of political power and thus made for conflicts.
Modern historians dealing with this period of history have not hesi
tated to restate the problem in the same way as the ancients stated it.20
As we shall directly show, modern capitalist economy has rendered
this whole subject problematical. And, despite the fact that the issue
is so crucial, analysis has been hindered by senseless taboos. The older
insights have been lost or hidden and are rarely brought fully into the
open. Thus, the classical approach has been restated in modern times
by Marx's interpretation of history (that this did not originate with
him—and is not “ Marxist” —he himself admitted). Yet since it is
fashionable to reject Marxism root and branch—sight unseen so to
speak—the student precludes himself from a clear understanding of
the relationship between economic power and political power.
The approach is facilitated by the establishment of certain categories
of relationships.
1. The ancient conception. Here—and this follows already from
what has been said—although the source of political power is eco
nomic power, political power permeates all social activities and all
spheres of life. The economic power position merely provides the
motor of political power which then includes all power relationships.
2. The feudal conception. In the ideal-typical form, political power
does not exist. It is merely a function of an economic power position:
the ownership of land. From it flow judicial, military, religious, legis
lative and administrative powers.
3. The capitalist conception. It is only in this period that a real
problem arises: the independence of political power and yet its inter
connection with economic power. Political power (the theoretical
construction has been perfected by Hobbes) is a separate activity,
carried out in a separate institution: the state. The state has the mo
nopoly of coercive power which it exercises in a separate institutional
framework. At the same time, however, this separate institution is in
trinsically connected with society in the service of which it operates. It
is this conception of political power that unites Locke and Hobbes, and
distinguishes both from Rousseau. Both separate political power from
social power; both connect them. Hobbes believes it necessary to
maximize political power in order to serve society; Locke maintains
that only by its minimization can society be served. Both, however,
admit of exceptions. In Hobbes’s theory, political power will be de
stroyed if it fails to serve its social function (the social contract lapses);
Locke, through the institution of the prerogative and federative power,
maximizes political power if it is necessary for the good of the com
monwealth. W hat Ilobbes and Locke did not clearly state is that the
two are not only functionally but genetically connected; that is, eco
nomic power is the root of political power. The first systematic analysis
of this relationship stems from St. Simon’s analysis of the French Revo
lution and then spreads rapidly into French and English historiogra
phy and sociology.
From this general view of Hobbes and Locke it follows that what
ever freedom society, and particularly economic activity, is to have, it
has for the sake of maintaining a stable political order. There is thus
no “ pure” economic power and no “ pure” political activity. Economics
is as much an instrument of politics as politics is a tool of economics.
The mythological conception of the laissez-faire state ought finally to
be destroyed.
If this general view is accepted, the translation of economic power
into social power and thence into political power becomes the crucial
concern of the political scientist.
The Political Party—The single most important instrument for the
translation of social power into political power is the political party.
The reason for the supreme position of the party lies in the very nature
of democracy. The party permits the presentation of particular and,
quite frequently, very egoistic interests as national interests. At the
same time, however, it prevents the total domination of national in
terests by particular interests. The function of the political party in
democracy is thus ambiguous. The democratic process compels each
social group to strive for mass support. Each group, therefore, must
present its egoistic interests as universal. Politics in a democracy, the
struggle for political power, thus becomes far more ideological than
in any previous period in history. W hat was obvious for the ancients,
and clear to the feudal system, becomes hidden in the democratic
process. But the valuable side of this process must equally not be for
gotten. The very need to appeal to social groups larger than the im
mediate interest group compels adjustment of various interests. Poli
tics becomes more democratic.21
Private Property—Social power, in turn, either is derived from pri
vate property or is against it. The legal meaning of private property
comprises two radically different conceptions: power over an external
piece of nature (or an absolute right) and power over other men de
rived from power over nature.22 It is only the second meaning of pri
vate property with which the political scientist is concerned: with
proprietorship in the means of production. This type of property gives
power—power in the labor market, in the commodity market, and in
the political market of the state.
The three power functions of property are usually (and particularly
in Europe where political and social life is more petrified than in the
United States) institutionalized in three types of organization: for the
labor market, the employer’s association; for the commodity market,
the cartel; for the political market, the territorial form of the chambers
of commerce and the functional form of the trade associations.
As against property, the trade unions (in Europe) attempt to or
ganize the labor markets and the political markets by the collective
power of organized labor, sometimes in one organization, sometimes
in several. Consumers’ and producers’ cooperatives, however, affect
only slightly the power of property in the commodity market.
Studies of these organizations and the devices by which their power
is translated into political power are vital to the political scientist23
Large numbers of individual studies of pressure groups exist, but a
really sophisticated, comparative analysis is still lacking. The transla
tion of these economic power positions differs from country to coun
try and from historical situation to historical situation. The relative
strength of the competing economic groups is far more important for
the analysis of political power than the study of the political institu
tions proper. There are countries (like Germany and England) where
the agents and managers of the economic organizations enter parlia
ments directly; there are others (like the United States) where the in
fluence is more indirect. There are countries (like Germany and Eng
land) where trade unions are political as well as industrial bodies; there
are others (like France and the United States in certain situations)
where they apparently abstain from politics.
The devices and forms for the translation of economic power into
political power thus vary considerably and yet patterns are discernible
which ought to be more sharply defined on a comparative basis. A high
degree of knowledge of problems of social stratification and economic
organization is thus indispensable for the political scientist.
The Ascendance of Politics and of Bureaucracies—The classical re
lationship between economics and politics changes. It now appears as
if political power has begun to emancipate itself from its economic
roots and, indeed, tends to become a base for the acquisition of eco
nomic power. In general, bureaucratization is believed to be the mani
festation of that trend which culminates in doctrines of managerial
rule: private and public managers eliminating property owners and
parliaments. The trend toward bureaucratization has unquestionably
two roots: the transformation of parliamentary democracy into mass
democracy; and the transition of a predominantly competitive econo
my into a predominantly organized economy. W hile these trends are
known and progress under our very eyes, they do not necessarily involve
an assumption of political power by bureaucracies. The growth of the
scope and number of bureaucratic structures may merely indicate that
the social groups which rule now need more and more bureaucracies in
order to cope with the exercise of political power. But the equation of
a larger number of bureaucrats with increase of their power is due to
the inability (or unwillingness) to distinguish sharply three different
problems involved in what is called “ bureaucratization” ; namely bu
reaucratic behavior, bureaucratic structure, and bureaucratic power.
Bureaucratic behavior (roughly equated here with routine perform
ance as against initiative or creative performance) is, of course, spread
ing. No sphere of activity is exempted from it. Whether it is beneficial
or not shall not be discussed here. W e should merely remember the
tremendous extent to which our comforts depend on routine per
formances. Moreover, it is untrue that the decisions of the bureaucrats
(public or private) are exclusively routine decisions. Many, indeed, are
creative ones, not derived from precedent or standing rules, but highly
discretionary and thus essentially lawmaking in character. Finally,
bureaucratic organization, that is, hierarchies where commands are
channeled from above to below and responsibility goes from below to
above, is not confined to public life. The facts are obvious.
Though the growth of bureaucratic behavior, with the increase in
the number of bureaucratic structures, is a continuous process, it does
not thereby follow that power (private or public) has shifted to the
bureaucracies. No abstract answer can be given; only empirical investi
gations can reveal whether shifts in power have taken place. Such in
vestigations are, unfortunately, rare.
The Soviet Union presents a clear-cut marginal case where political
power not only has made itself supreme but has become the fount of
whatever economic power positions exist. Nazi Germany, on the other
hand, exhibited a transitional case. It is undisputed that the Nazi party
rose to power with the financial and political assistance of German big-
business leaders who doubtless hoped to use the party for the promo
tion of their own interests. But the party, once having achieved power,
emancipated itself from business control, and its political power be
came autonomous. The party then went further and attempted to
create economic power positions for itself. Clearly the new political
power was seeking to give itself an economic power base. This, indeed,
is the significance of the Goering combine, the expanding enterprises
of the Labor Front and the S.S., and the acquisitions resulting from
Aryanization and Germanization. The war, which made it inadvisable
to carry out sweeping institutional changes, interrupted the process.
But it is quite safe to assume that, had there been no war or had the
Nazis been victorious, the Soviet pattern would have prevailed.
The reactions to the ascendant role of political power are, as a rule,
hostile. Most notable is the attempt to ascribe this phenomenon to
democracy. This is, of course, essentially correct. For, as we have indi
cated, the attitude of democracy toward political power is undoubtedly
positive. Yet more is meant by that statement which by no means is a
mere scientific one but has definite political undertones and overtones.
It is implied that the growing political power will, by its inner dy
namics, be abused and will ultimately lead to a totalitarian system. In
this, modern criticism resumes the traditionalist critique not of politi
cal power but of democracy. Maistre and Bonald are resurrected. Pro
ceeding from the shaky psychology of the essential evilness of man,
they assert the inevitable transformation of democracy into mob rule,
which, in conjunction with the modern trend of state interventionism,
must culminate in totalitarianism. The remedy is some kind of aristo
cratic rule. A second reaction believes bureaucracy to be inimical to
liberty and attempts to protect democracy by identifying it with indi
vidual liberty against the state.
Both reactions base themselves on what they call the tradition of
Western civilization, the kernel of which is allegedly hostility to politi
cal power as expressed in constitutionalism. This is only a partial truth
and, therefore, false. The tradition of Western civilization is more
complex. Its richness was hinted at when we attempted to classify the
various attitudes toward political power. Certainly, one may say that
Rousseauism is a more important element in the political tradition of
democracy than the essentially self-contradictory and arbitrary doc
trines of Locke and of the natural law. That political power (whether
democratic, aristocratic, or monarchic) can be abused is beyond doubt;
but it is doubtful that abuses can be effectively checked by constitu
tionalism.24 The problem of modern democracy is much less the fenc
ing of political power than its rational utilization and provision for ef
fective mass participation in its exercise.
V. Identification of Political Power

In the Soviet Union, there is little doubt where political power re
sides. In Nazi Germany, after June 1934, it was equally clear that the
monopolistic party concentrated all political power. In a liberal de
mocracy (and in constitutional systems generally) the identification of
political power is extremely difficult. Our contention that political
power has its roots in economic power can merely provide a frame
within which the analyses have to be made; for we deliberately stated:
“ Social power . . . is derived from private property or is against it.”
Since the distribution of the “ for” and “ against” varies, the empirical
sociological analyses of this interrelationship are the crucial concern
of the political scientist.
Constitutional law helps but little. The form of government may or
may not truly express the distribution of power. H ie doctrine of sepa
rate powers may or may not express the fact that social forces are as
balanced as are the political institutions. As a rule, they are not.25 Con
stitutional law merely supplies the frame for the exercise of political
power but does not indicate its holder or its functions. All traditional
legal conceptions are negative ones. They limit activities but do not
shape them. It is this very character of law which grants to the citizen
a minimum of protection. This applies specifically to the conception
of external sovereignty, a term which we have so far avoided. It does
not indicate the owner of sovereign power nor the use to which this
power may or can be put; it merely delimits the power of one terri
torial unit from any other. The conception of property is fashioned in
exactly the same way. It does not reveal the object of property nor its
social function; it merely protects man’s control of an external piece
of nature. Constitutional law, secondly, indicates the form in which
political power may be legitimately exercised. W hile the significance
of both aspects of constitutional law may not be underestimated, em
pirical sociological studies of the locus of political power are indis
pensable.
There are, however, situations which may reveal in a flash, so to
speak, where political power resides. These are emergency situations
such as stages of siege, martial law, and so on. It is for this reason that
Carl Schmitt, the famous Nazi constitutional lawyer, stated in his
pre-Nazi period: “ Sovereign is he who decides the emergency situa
tion.” 20 W hile not accepting the implications of Schmitt’s doctrine of
sovereignty, it is clear that the study of such emergency situations will
yield valuable hints as to where political power actually resides in
“ normal” periods. Such a marginal situation existed in Nazi Germany
on June 30, 1934. Up to that date, it could be very doubtful whether
political power rested with the party alone, or with a combination of
party, army, business, and so on. The liquidation of the Rohm group,
of the generals, and of others made it, however, abundantly clear that
the party had succeeded in monopolizing political power.
Such studies have been neglected. They are carried out mostly in
terms of constitutional law, but rarely in political-sociological cate
gories.
VI. Political Power and Freedom

I stressed initially that political power is neither comparable to the
concept of energy in physics nor the sole conception of political sci
ence. Yet the original formulation, power vs. idea, is too ideological. If
history were a conflict between power groups and ideas, ideas would
be invariably defeated. Politics is certainly the conflict between power
groups, and the conflicts may be resolved by victory' and defeat or by
conciliation, that is, compromise. But one group may, in its struggle for
power, represent more than a particular interest; it may indeed repre
sent the idea of freedom, the idea crucial to political theory. If, for
example, you analyze immigration legislation and come to the con
clusion that business groups pressured for its liberalization in order to
secure cheaper labor power, you have indeed done part of your task
as political scientists, but only part of it. Of equal importance is the
analysis of the role of immigration legislation in the historical develop
ment of the United States. The task of political theory is thus the de
termination of the degree to which a power group transcends its par
ticular interests and advocates (in Hegelian terms) universal interests.
This determination is by no means easy. In fact, the distinction be
tween ideology and truth becomes increasingly difficult. Some of the
difficulty lies in the ideological character of politics in a democracy
(discussed above), but, in the last resort, it results from the tremendous
weight of power on what is called public opinion. Every political sys
tem impresses the mores of the ruling group upon the population. The
greater the tensions, the more stringent the impositions become. The
individual then resorts to many forms of dissimulation; and, in certain
periods of history', it is the liar who becomes the hero.27 The lie (in its
many forms) becomes the protection of the individual against a uni
versalized system of propaganda. It is for this reason that I am skeptical
of the value of the various highly developed techniques of measuring
attitudes, particularly attitudes which may challenge the basic founda
tion of a contemporary society. George Orwell, in his otherwise bril
liant performance, 1984, overlooks the fact that compulsion operates
wherever political power exists.
This realization was strikingly formulated by one of America's most
interesting philosophers, Charles S. Peirce, in his article, “ The Fixation
of Belief.”
The method of authority will always govern the mass of mankind; and those
who wield the various forms of organized force in the state will never be
convinced that dangerous reasoning ought not to be suppressed in some
wâv. If liberty of speech is to be untrammelled from the grosser forms of
constraint, then uniformity of opinion will be secured by a moral terrorism
to which the respectability of society will give its thorough approval. Follow
ing the method of authority is the path of peace. Certain non-conformities
are permitted; certain others (considered unsafe) are forbidden. These are
different in different countries and in different ages; but, wherever you are,
let it be knenvn that you seriously hold a tabooed belief, and you may be
perfectly sure of being treated with a cruelty less brutal but more refined
than hunting you like a wolf. Thus, the greatest intellectual benefactors of
mankind have never dared, and dare not now, to utter the whole of their
thoughts; and thus a shade of prim a facie doubt is cast upon every propo
sition which is considered essential to the security of society. Singularly
enough, the persecution does not all come from without; but a man tor
ments himself and is oftentimes most distressed at finding himself believing
propositions which he has been brought up to regard with aversion. The
peaceful and sympathetic man will, therefore, find it hard to resist the
temptation to submit his opinions to authority.28
Notes
1. “ Concerning government, it is a part of knowledge, secret and retired, in both
these respects in which things are deemed secret; for some things are secret because
they are hard to know, and some because they are not fit to utter. W e see all
governments are obscure and invisible:
Totamque infusa per artus
mens agitat molem et magno se corpore miscet.
Such is the description of governments.” Bacon, The Advancement of Learning,
Everyman edition, p. 204.
2. T he relation between the two will be discussed later.
3. This view is essential to scientific method and is classically formulated by
Bacon: “ Science and power are identical because ignorance of the cause puts the
effect out of reach. For nature is conquered only by obeying her; and that which,
in contemplation, is the equivalent of a cause is in operation the equivalent of a
rule.” Works (Boston, 1859), vol. I, p. 2 4 1.
4. Harold Lasswell, Power and Personality (New York, 1948), especially Intro
duction, p. 10 .
5. Thus Bertrand Russell, Power, A N ew Social Analysis (reprint, London, 1948),
p p .1 0 - 1 1 .
6. Harold D. Lasswell, Politics: W ho Gets What, W hen, How (New York,
1936).
7. T he implications of this conception of history as the ebb and flow of luck
come out clearly in the following statement by Machiavelli: “ Reflecting now upon
the course of human affairs, 1 think that, as a whole, the world remains very much
in the same condition, and the good in it always balances the evil; but the good
and the evil change from one country to another. . . The Discourses, Book II,
Introduction. Fortune is no arbitrator of history, however— au dessus de la melee.
“ God and nature have thrown all human fortunes into the midst of mankind; and
they arc thus attainable rather by rapine than by industry, by wicked actions rather
than by good. Hence it is that men feed upon each other. . . .” History of Florence
(Universal Classics Library Edition, Washington and London, 19 0 1), Book 3,
chap. 3, p. 129 .
8. It would be quite interesting to show the falsity of the statement: Peisistratus'
rule being a case of absolute power with infinitely less corruption than that of a
constitutional monarch of the eighteenth century; Augustus starting as a totally
corrupt youth and becoming more enlightened with the growth of his personal
power; the Papacy, quite corrupt in the sixteenth century (when its power was
limited), and incorrupt after the Vatican Council which formalized absolute per
sonal rule in theological matters.
9. Harold Lasswell, The Analysis of Political Power (London, 1948), pp. 1 9 5 -
237.
10 . These trends are particularly marked in the writings of industrial psycholo
gists like Elton M ayo. See Reinhard Bendix and Lloyd Fisher, “ T he Perspective of
Elton M ayo," in The Review of Economics and Statistics, vol. X X X I, N o. 4,
November 1949, p. 3 12 .
1 1 . “ Although the laws be never more than mere declarations of anterior rights,
nevertheless it is of utmost importance that all is written which can be written:
indeed, in every constitution there is always something which cannot be written
down, and which must be left in a dark and venerable cloud under pain of over
throwing the state." Joseph de Maistre, Considerations sur la France, ch. vi.
12 . This is not to imply that education is to be considered solely as an instrument
of maintaining power; but it must also be considered as a technique in the struggle
for power.
13 . C f. M ax W eber, “ Politics as a V ocation," Essays in Sociology, edited by
H. H . Gerth and C . W right M ills (New York, 1946), pp. 8 0 -8 1. Specifically, one
may note that the ruling group, even when relying mainly on physical violence, may
owe its own cohesion to material benefits and persuasion.
14. Pierre Janelle, L ’Angleterie catholique a la veille du schisme (Paris, 19 35),
p .18 5 .
15 . Loc. cit., pp. 1 0 2 - 1 0 3 .
16 . Political Parties (Glencoe, 111., 1949).
17 Wirtschaft und Gesellschaft, Dritter Teil, “ Typen der Herrschaft," Kapitel
>. s
18 . rhat it may become, not its implementation, but its negation should be kept
in mind.
19 . For a more detailed analysis of this phenomenon see my Behemoth: The
Structure and Practice of National Socialism (New York, 1942), pp. 2 5 5 -3 6 1.
20. Models are: Gustave Glotz, The Greek City (New York, 1929) and Ancient
Greece at W ork (New York, 1926); Ronald Syme, T he Roman Revolution (Oxford,
1939); and, of course, RostovzefTs works.
2 1. It is this fact that Marxists usually overlook.
22. T he most significant analysis: Karl Renner, T he Institutions of Private Law
and Their Social Functions, first published in Germany, 1 9 1 1 , ed. by O. Kahn-
Freund (London, 1949).
23. R . A. Brady, Business as a System of Power (New York, 1943), is a first
attempt, but a rather crude and mechanistic one. T N E C Monograph N o. 26,
Economic Power and Political Pressures, should be mentioned here.
24. Edward S. Corwin, Liberty against Government (Baton Rouge, 1948).
25. See my Introduction to Montesquieu, The Spirit of the Laws (New York,
1949), reprinted in this volume.
26. Carl Schmitt, Politische Theologie (Leipzig, 1934), p. 1 1 .
27. This is very striking in Stendhal’s novels.
28. Charles Sanders Peirce, “ T he Fixation of Belief,” in T he Philosophy of
Peirce, edited by Justus Buchler (New York, 1940), p. 20. T he article was first
published in the Popular Science Monthly, 18 7 7 .
[ch apter 2]
<[ <[
THE C H A N G E IN THE F U N C T IO N OF
L A W IN M O D E R N S O C I E T Y *
F ascist and social-reformist critics conceive of the liberal state as a

“ negative'’ state, and Lassalle’s characterization of the liberal state as a
“ night-watchman state” is a generally accepted formulation in these
circles. The fact that liberalism too regards its nonexistence as the
highest virtue of the state is so evident that no proof is needed. Accord
ing to this ideology, the state must function imperceivably and must
really be negative. One would, however, fall a victim to a historical fal
lacy if one were to identify “ negativeness” with “ weakness.” The liberal
state has always been as strong as the political and social situation and
the interests of society demanded. It has conducted warfare and
crushed strikes; with the help of strong navies it has protected its in
vestments, with the help of strong armies it has defended and extended
its boundaries, with the help of the police it has restored “ peace and
order.” It has been a strong state precisely in those spheres in which
it had to be strong and in which it wanted to be strong. This state, in
which laws but not men were to rule (the Anglo-American formula)—
i.e., the Rechtsstaat (the German formula)—has rested upon force and
law, upon sovereignty and freedom. Society required sovereignty in
order to destroy local and particularist forces, to push the church out
of temporal affairs, to establish a unified administration and judiciary,
* This article is an abbreviated translation of “ Der Funktionswandel des Gesetzes
im Reclit der biirgerlichen Gesellschaft,” Zeitschrift fiir Sozialforschung, 19 37,
pp. 542-396. The translation and editing has been done by Klaus Knorr and
Edward A. Shils. It was incorporated into Selected Readings, Second Year Course
in the Study of Contemporary Society (Social Science II), 8th edition (Chicago:
University of Chicago, Sept. 1939).
The article no longer fully represents the views that I hold, as will become ap
parent by comparison with the subsequent article “ T he Concept of Political
Freedom.”
M
The Change in the Function of Law in Modern Society (23)
to protect boundaries and to conduct war, and to finance the execu
tion of all these tasks. Political liberty has been necessary to modern
society for the safeguarding of its economic freedom. Both elements
are indispensable. There is no modern theory of law and state which
does not accept both force and law even if the emphasis accorded to
each of these components has varied in accordance with the historical
situation. Even when it is asserted that sovereignty must be the func
tion of the competitive process, still force, unregulated by law, is de
manded independently of the competitive process.
Juridical terminology expresses this actual contradiction in the two
concepts of objective law and subjective rights (in German, both
meanings can be covered by the term Recht). '‘Objective law” means
law created by the sovereign or, at any rate, law attributable to the sov
ereign power; subjective rights mean the claims of an individual legal
person. The one negates the autonomy of the individual; the other
presupposes and affirms it. Various theories have attempted to recon
cile the contradiction expressed by these two terms. Sometimes the
subjective rights are simply declared to be mere reflections of the ob
jective law—a proposition which completely denies the autonomy of
the individual. (This German theory, which was developed and flour
ished at the end of the nineteenth century, has been adopted by Italian
fascism.) Sometimes the difference between objective law and subjec
tive rights is denied altogether. Subjective rights appear as nothing but
objective law itself in so far as the latter, by force of the claim to obedi
ence which it establishes, addresses itself to a concrete person (obliga
tion) or is directed against such a concrete person (legal claim). Other
theories again reduce objective law to patterns of behavior on the part
of those subject to the law.
I
The work of the classic liberal Locke does not contain the term
“ sovereignty,” but the idea is there. Locke, like all liberal theorists of
the state, conceived of man as being good in the state of nature. He
thought of the state of nature as a paradise which is supposed to persist
even after the formation of the state. It is true, according to Locke, that
laws will prevail (he called them “ standing laws” ) whose material con
tent cannot be altered even by democratic procedures. But even Locke
approves of extralegal force. He docs not, however, call it sovereignty
(24) The Change in the Function of Law in Modern Society
(ever since the frank discussions of Hobbes and the absolutism of the
Stuarts the word lias had an unpleasant connotation in England) but
prerogative. By prerogative he referred to the power to act, at discre
tion, beyond or even against the law. Man, after all, sometimes is evil,
and Locke recognized that the positive laws of the state are but imper
fect copies of the laws of nature. Whenever these evil tendencies find
expression there must be a power to lead man back to his state of natu
ral goodness. The prerogative, the force unregulated by law, is most
developed in the “ federative power,” which Locke puts beside the
legislative and the executive. He acknowledged it as a third independ
ent power. The prerogative operates in the conduct of foreign affairs
which cannot be based on abstract general norms but necessarily must
“ be left in great part to the prudence of those who have this power com
mitted to them, to be managed . . . for the advantage of the common
wealth.” 1
This fundamental duality is perhaps even more clearly expressed by
absolutists like Hobbes and Spinoza. Although law for Hobbes is pure
voluntas, identical with all the sovereign’s measures, and notwithstand
ing the fact that outside the state there can be no law, he restricts his
monistic theory by basing the state (and hence law) on a natural law
which is not only voluntas but also ratio because it is oriented toward
the preservation and defense of human life. In case of a conflict be
tween the measures of the sovereign and the ratio of the law of nature,
he concedes clear priority to the law of nature. “ Contracts, which pro
hibit the defense of one’s own body, are null and void.” No one is ob
liged to confess to a crime, no one to commit suicide or to kill a fellow-
man. Universal military service is against natural law. Lacking his
usual lucidity, he writes that the Law of Nature obliges always in con
science (in foro interno) but not always in foro externo.2 The point
where the obligation of obedience ceases and the right of disobedience
(which is only granted in individual cases) commences again is am
biguously defined. “ If the sovereign command a man, though justly
condemned, to kill, wound, or maim himeslf; or not to resist those that
assault him; or to abstain from the use of food, air, medicine, or any
other thing without which he cannot live; yet hath that man the liberty
to disobey.”3 Here again Hobbes’s ambivalent attitude is obvious. In
accord w'ith requirements of this epoch the emphasis is put on sov
ereignty, legally unchecked force, and on the demand for a strong
state which is independent of the warring groups. But liberty, however
weakly, is also stressed.
The conflict in question is even more evident in the case of Spinoza,
who really developed two theories: a theory of the state and a theory of
law, between which there exists a dialectical relationship. In Spinoza’s
theory of the state, state absolutism is at least as unlimited as in
Hobbes. The rights of the individual are lacking even though freedom
is postulated as the ultimate aim of the state. Even in matters of re
ligion the subject is entirely subordinated to the measures of the sov
ereign, which are called laws. “ It is obedience which makes the sub
ject.” Only thought is free. In Spinoza’s Tractatus politicus even the
last traces of the rights reserved to the individual have been eliminated,
probably owing to the impression which the murder of his friend De-
W itt left on him. “ If we understand by law the law of civil society . . .
then we cannot say that the state is bound by law or can infringe on it.”
The laws of civil society are entirely dependent on the state and in
order to protect its own freedom the state should act only out of con
sideration for itself and should “ regard nothing as good or evil except
what according to its own judgment is good or evil for itself.” 4 Be
side this absolutist theory of the state, however, there stands his theory
of law, which really represents a correction of his theory of the state.
“ The natural right of the totality of nature and consequently of every
individual extends just as far as its power. Accordingly, whatever a
person does in following the laws of his own nature, he does in ac
cordance with the highest natural law and the justice of his action is
proportionate to his power.” 5 Under normal circumstances the state
has supreme power, and hence it has the highest right. Should, how
ever, an individual or a group acquire power, then they will be right to
a corresponding extent. Spinoza’s theory, therefore, is not a system in
which the relationship of state and society is rigidly determined. The
line of demarcation is flexible. If a social group possesses enough
power, it may acquire for itself as much liberty as its power allows in
the face of the power of the state. It may ultimately succeed to the
direction of the state and transform its power into law and justice. The
absolutism of the state is based on considerations identical with those
operative in the case of Hobbes. But the freedom of individuals is
guaranteed by power which becomes legal and just and which they are
to apply in order to conduct commerce, to exchange goods, and to co
(26) The Change in the Function of Law in M odem Society
operate in a society which is based on division of labor. The theory,
according to which might is right, serves primarily to control the
masses which Spinoza hated, but at the same time it combated mon
archy. Spinoza's theory is the theory of an opposition which feels its
strength and which hopes soon to transform its social power into po
litical power.
II
The antithesis of sovereignty and law corresponds to two different
concepts of law: a political and a rational concept. In a political sense
every measure of the sovereign power, regardless of its material content,
constitutes law. Declaration of war and conclusion of peace, tax laws,
and the code of civil law, the policeman's command and that of the
bailiff, the decision of the judge and the legal norm upon which the
decision is based—in fact, all utterances of the sovereign, because they
are utterances of the sovereign, are law. This concept of law is exclu
sively genetically defined. Law is voluntas and nothing else. In so far
as a legal theory accepts this political concept of law, it may be called a
“ decisionist" theory. However, there is also the rational concept of
law, which is based not on the source of law but on its material con
tent. Not every measure of the sovereign, and not only measures of the
sovereign, are law. Law is here a norm which is intelligible and contains
an ethical postulate which is frequently that of equality. Law, then, is
ratio and not necessarily voluntas at the same time. This rational law
need not, but can, emanate from the sovereign. For this theory of law,
especially in the form of the theory of natural law, asserts that material
laws may exist without reference to the will of the sovereign. It de
fends the validity of a system of norms even when the positive law of
the state ignores its postulates. Today these two concepts of law are
strictly separated.
There is no such separation in the Thomist system of natural law.
There voluntas and ratio are still one. Not every measure of the au
thority is law. Only those measures are law which also correspond to
the requirements of the law of nature. Law is the basis, the standard,
the regula artis, by means of which a just decision is to be obtained.
Against a law which contradicts the principles of lex naturalis, passive
resistance is not only justified but it becomes rather a duty, because
even God cannot dispense with the lex naturalis. In the Thomist sys-
The Change in the Function of Law in Modern Society (iy)
tern, the law of nature is sufficiently concretized and, in part, insti
tutionalized : Thomism derives from it a number of concrete demands
on the legislator. At the same time the recognition of the right of, at
least, passive resistance makes possible the realization of the law of na
ture in the face of a conflicting law of the state.
The separation of the two concepts of law is undertaken by the
Nominalists and in the Conciliar theory. Since then law has been
viewed as the conscious creation of civil society. The detachment of
the political concept of law from non-secular natural law was consum
mated in the course of the struggles between church and state and of
the internal conflicts within the church and the temporal order. The
nominalists, who represented specifically bourgeois interests, opposed
the papal demand for the subordination of the temporal power. During
these conflicts natural law underwent a series of metamorphoses, serv
ing at one time a revolutionary function and at another a conservative
one, at still another a critical function, and then an apologetic one.
Whenever a political group attacks the powerfully intrenched posi
tions of another group, it will use revolutionary natural law as an im
plement and will derive from natural law even the right to tyrannicide.
Whenever such a group has succeeded, it will abjure all its former
ideals, suppress the revolutionary implications of natural law, and trans
form it into a conservative ideology. Marsilius of Padua, owing to his
antagonism toward the ecclesiastical claim for temporal sovereignty,
was forced to restrict the rule of the temporal sovereign by recognizing
a type of natural law which supported demands for freedom. The
legislator, the pars principans, is not without restrictions, but is placed
under the domination of universal norms of natural law, which are, to
a high degree, concretized and institutionalized. At the same time,
however, Marsilius, in order to receive sufficient popular support, was
forced to postulate democratic rights of participation in which he con
ceives of the people not as the totality of all free and equal citizens but
only as the pars valentior. The conciliar theorists, Gerson and Nicolas
of Cusa, were driven to the acceptance of the same postulates in con
sequence of their conflict with the claims of the Pope for ecclesiastical
sovereignty. Gerson reduced the will of the church to the individual
wills of the members of the ecclesiastical aristocrats who were as
sembled at the council. Nicolas of Cusa went even further and made
the ecclesiastical power subject to the general norms of natural law
while denying the validity of papal measures which contradicted these
universal laws.
Beginning with the fourteenth century, the identity of political and
rational law ceases to be insisted on. The political law is regarded only
as the measure of the sovereign. Natural law, as expressed in universally,
generally valid norms, stands in opposition to political law and plays a
restrictive role with reference to it; natural law points in a definite di
rection and contains social demands which usually refer to the preser
vation of private property and to political liberties. Furthermore, it
contains the demand for equality before the law. This type of natural
law, as in the case of the Monarchomachs, is always put forward by an
attacking group. Bodin, who produced the first modern system of legal
and political theory, accepts sovereignty as an absolute and permanent
power as unequivocally as he accepts rational law which restricts that
absolute power.
I ll
In the age of liberalism, natural law declines to the same degree as
democracy and the social-contract theory find acceptance. The gen
erality of the positive law acquires a position of central importance in
the legal system. Only a norm, which has a general character, is re
garded as law. It is sometimes asserted that the difference between the
general law and the individual measure is only a relative one, because
each command of the superior to the subordinate has some degree of
generality with respect to the act to be executed since the executor
always possesses a certain amount of initiative, however small. Those
legal theorists who accept as legitimate only those concepts which lend
themselves to a logically unambiguous formulation, and who will re
ject every decision as subjective and, therefore, arbitrary, will also re
ject the distinction between general norms and particular measures.
W e conceive of a legal norm as a hypothetical judgment of the state
regarding the future conduct of its subjects, and the statute is the
principal form in which this legal norm appears.
Three elements are relevant in the characterization of the law: the
law must be general in its formulation, its generality must be specific,
and it must not be retroactive. Rousseau formulated the claim for the
generality of formulation as follows: “ When I say that the object of
laws is always general, I mean that the law considers subjects en masse
The Change in the Function of Law in M odem Society (29)
and actions in the abstract, and never a particular person or action.
Thus the law may indeed decree that there shall be privileges, but can
not confer them on anybody by name . . . In a word, no function
which has a particular object belongs to the legislative power/'6
This first requirement is insufficient, however, for “ right receives
only by becoming law not only the form of its generality but also
its true determinateness. Therefore in considering the nature of law
making, one should not dwell only upon the first formal aspect of a
law, namely that it declares something as the universally valid rule of
behavior. Rather it is more important and essential to consider the
contents of a law and to recognize that these contents partake of a
specific, defined generality."7 But what is the substantive content of
this generality? In order to deduce this concrete definition, we distin
guish between specific laws and “ legal principles" or legal standards of
conduct (GeneraJklauseln, as they are called in German jurisprudence).
Propositions like the following: that contracts which violate public
policy or are unreasonable or immoral ($ 138 of the German Civil
Code, BGB) are null and void; or that he who damages someone in a
way which violates good morals is responsible for indemnities (jj 826);
or that he “ who commits an act which has been declared punishable
under the law or which is deserving of punishment because it is in
conflict with healthy popular sentiment" shall be punished ($ 2 of the
Criminal Code for the German Reich as formulated by the Law of
June 28, 1935), are not specific laws with true generality. They embody
rather a spurious generality. Because in present-day society there can
be no unanimity on whether a given action, in a concrete case, is im
moral or unreasonable, or whether a certain punishment corresponds
to or runs counter to “ healthy popular sentiment" they have no specific
content. A legal system which derives its legal propositions primarily
from these so-called general principles (GeneraJklauseln) or from “ legal
standards of conduct" is nothing but a mask under which individual
measures are hidden. On the other hand, rules like the following: the
legal existence (rights and responsibilities) of a person begins with his
birth (J 1 of the German B G B), or that the transfer of landed property
is effected by agreement of the parties concerned and registration in
the registry of landed property ($ 873 of the German BG B) are real
legal norms because all the essential facts to which the norm refers are
clearly defined and because there is no reference to moral standards
which are neither generally binding nor accepted as binding. If the
fundamental principles or the essential parts of a legal system are placed
under the rule of such Generalklauseln, then one can no longer speak
of the rule of a general law.
The formal structure of a general law—and herein lies the third ele
ment of generality—contains also a minimum of substantive content.
The general law which is defined in such a manner guarantees to the
judge a minimum of independence because it does not subordinate
him to the individual measures of the sovereign. Likewise a general
law contains the demand for the inadmissibility of retroactivity. A law
which provides for retroactivity contains particular commands inas
much as the facts to which the law refers already exist.
The facts which are regulated by general laws are to be found either
in spheres of free choice or in institutions which guide and control
behavior. Liberty, in the legal sense, has an exclusively negative mean
ing. It is merely “ the absence of external compulsion” (Hobbes). This
“ negative freedom or this freedom as conceived by the intellect is one
sided; but this onesidedness always contains in itself an important de
termination. It is therefore not to be discarded. The shortcoming of
the intellect is, however, that it elevates a onesided determination into
an exclusive and dominant one” (Hegel Philosophy of Right, $ 5,
suppl.).
It is necessary, however, to do more than indicate the existence of a
sphere of freedom from the state. It is important in this connection to
point out a distinction, however superficial, between the various kinds
of legal freedom. W e distinguish in general four separate legal free
doms: (1) Personal freedom, which comprises the rights of the isolated
individual, such as the provision that a person can be arrested only on
the basis of laws and by means of legal procedures; and domiciliary
and postal inviolability. (2) Political freedom, which is political because
it obtains its significance only on the basis of an organized social life
within the framework of the state. It includes, e.g., freedom of as
sociation and assembly, freedom of the press, and the right to the
secret ballot. These rights are liberal as well as democratic. They are
liberal in so far as they guarantee freedom to the individual in certain
spheres of life and democratic in so far as they are means to the demo
cratic determination of state policy. (3) A third category is constituted
by economic freedom, i.e., freedom in trade and industry. (4) In the
period of democracy the political rights of liberty find expression also
in the social sphere by the recognition of a right of association on the
part of employees. This fourfold classification does not claim exhaus
tiveness either logically or historically. These freedoms ordinarily are
not constitutionally guaranteed as unrestricted rights. Such guaranties
would be absurd. They are guaranteed exclusively within ‘The frame
work of the law/’ Interference with these rights is therefore permitted
only on the basis of legal provisions. It is the most important and per
haps the decisive demand of liberalism that interference with the rights
reserved to the individual is not permitted on the basis of individual
but only on the basis of general laws.
In addition to defining areas of freedom, general laws also regulate
human institutions. By institution we mean an enduring, dominational
or co-operative association for the continuance of social life. (These re
lationships can be formed either between different properties or be
tween different people or between persons and properties.) This defi
nition is purely descriptive and has nothing to do with pluralistic
theories of the state, with Thomism or with the National Socialist
philosophies of law, both of which have attached central signifiance
to “ institution/’ This concept includes all sorts of associations, the
foundation, the factory, the business enterprise, the cartel, and the in
stitution of marriage. Above all, it comprises the most important insti
tution of all historical societies—private property in the means of pro
duction. Private property as such is a subjective and an absolute right
which lends to the proprietor legal defenses against anyone who in
terferes with possession or enjoyment of the property. In addition, how
ever, private property in the means of production is also an institution.
It is destined to be enduring; its functions in the maintenance and con
tinuance of social life; it assigns to man a place in a dominational
structure.
There are definite and definable relations between institutions and
the various liberties. A certain liberty may be a principal freedom and,
for the guaranty of its operation it may require a complex of auxiliary
liberties and auxiliary institutions. An institution likewise may also
require auxiliary liberties. Private property as the central institution
of modern society in the age of competitive capitalism requires the
decisive auxiliary liberties of freedom of contract and freedom of en
terprise. The owner of capital must have the liberty to establish or
discontinue a business enterprise; he must have the right of concluding
all sorts of contracts, since he can operate only if these particular rights
are recognized. These economic liberties are not protected for their
own sake, but only because in a particular phase of economic evolution
their protection is necessary for the functioning of the principal insti
tution. The contract—i.e., the legal form in which man exercises his
liberty—is, in the period of free competition, a constituent element of
modern society. The contract terminates the isolation of the individual
proprietors and constitutes a means of communication between them.
It is therefore as indispensable as property itself. To bring about “ that
I may own property not only by means of a thing and my own subjec
tive will, but also by means of another will, and thereby in a common
will—this constitutes the sphere of contract/’8
Liberalism regards as the rule of law exclusively the rule of statute
law, and not that of customary or natural law. Actually natural law
disappeared in England under the rule of Henry V II. It was during
this period that both the supremacy of parliamentary laws and the
duty of the judge to obey these laws became undeniable. Hence, al
ready in the sixteenth century the prevailing formula of the rule of law
meant only the rule of laws passed by Parliament. During the Puritan
revolution, of course, there emerged strong natural-law tendencies,
which were used not only by the Republicans in their struggle against
monarchism but were also employed by the Royalists in defense of
their own position. Since that time the rule of natural law has never
been asserted either in juridical literature, jurisprudence, or judicial
practice. Even Blackstone (1723-80) who, in the first volume of his
Commentaries, copied the natural-law system of Burlamaqui, and who
acknowledged the rule of an eternal and immutable natural law, was
compelled to admit (when discussing the sovereignty of Parliament)
that Parliament can do whatever it desires and that he knew of no way
of realizing the rule of the natural law which he postulated.
In Germany natural law experienced a different fate. At first it
changed its character; finally, it disappeared altogether. Natural law
can provide a theory of liberty. In this form it represents the critical
theory of a bourgeois opposition at war with absolutism. Or it appears
as an apologetic doctrine legitimating not a liberal system but the
sovereignty of the state. In England there was no reason for the fur
ther retention of either of these kinds of natural law—neither for the
liberal type, since the bourgeoisie had acceded to political power in
the seventeenth century, nor for the absolutist type, because ever
since Henry V III the unity of the state had been unquestioned (even
during the Puritan revolution). In Germany, however, neither of these
events had yet occurred. The most pressing task was the establishment
of a unified state in order to provide an important pre-condition for
industrial and commercial expansion. Pufendorf’s system of natural
law, which exerted extraordinary influence upon the jurists of the
seventeenth and eighteenth centuries, served the purpose of justify
ing, by means of natural law, the power of the state. Human nature,
according to his theory, is dominated by two impulses—the impulse
of sociability and the impulse of self-preservation. Since there is no
natural harmony among these instincts, harmony must be achieved by
compulsion. Natural law, however, because it has no sanction at its
disposal, is unable to accomplish this task. The execution of the law of
nature is entirely dependent on the foro divino et conscientiae. This,
however, is insufficient. Sanctions, therefore, are applied by the state,
which has been founded by contract and which must be an absolutist
one. The law of the state is the command of the sovereign; it is pure
voluntas. The right of resistance which Pufendorf includes in his sys
tem is only of secondary significance. In Christian Thomasius’ system,
natural law offers only a body of counsel from which certain moral ob
ligations follow. However, as law and morality are distinctly separated
and as the supreme criterion of law is its compulsory character
Thomasius’ system of natural law likewise serves to make compulsion
on the part of the state legitimate. However different Christian W olff’s
point of departure is, however determinedly he stresses the validity of
a Lex aeterna, he too arrives at the conclusion that only the state is able
to assure a well-ordered social life. The only difference from the ra
tionalistic theories of Pufendorf and Thomasius lies in the fact that
W olff assigned to the state the additional tasks of promoting welfare
and culture. His system was as adequate to the governments which
Frederick II of Prussia and Joseph II of Austria had set up, as the sys
tems of Pufendorf and Thomasius were expressive of the state which
the Elector Frederick William I had established.
If Kant's legal theory is examined apart from his ethics, it is found
that natural law has completely disappeared from it. The state is
viewed as an organization which is to guarantee that individuals can
(3 4 ) The C h a n g e in the Function of Law in M o d e rn Society
be free without interfering with the freedom of their fellow-men. But
the decision is delivered not by the autonomous individual but by the
absolute state, which is the logical postulate derived from the state of
nature under which, in turn, the existence of provisional private prop
erty and of the rule of pacta sunt servanda are already asserted as a
dogma. According to Kant, the freedom of the legal subject is guaran
teed solely by the requirement that the state must rule only on the
basis of general laws. But this postulate is asserted with rigorous con
sistency. Kant even rejects the softening of the strict legal system, as
it is codified by (statutory) general laws, through the law of equity. For
“ equity is a dumb goddess who cannot claim a hearing of right. Hence
it follows that a Court of Equity for the decision of disputed matters
of Right would involve a contradiction.” 9 From the time of Kant until
the end of the nineteenth century the demand for the generality of
law forms the center of German legal theory. By demanding that the
domination of the state be based on general laws Kant adopted the
theories of Montesquieu and Rousseau.
The demand that the state must rule only by means of general laws
is perhaps most clearly voiced in Montesquieu’s Esprit des Lois. Mon
tesquieu, by way of Malebranche, was influenced by Descartes. The
universe, according to Descartes, is governed by general mechanical
laws which even God is unable to alter because individual measures
are alien to him, and because God withdraws from the universe and
becomes immense, spirituel et infini. According to Montesquieu, the
laws of the state are general and inaccessible to the measures of the
sovereign in the same way. The French Revolution was most pro
foundly affected by the doctrines of Rousseau and Montesquieu. Mira-
beau, the chairman of the committee for the drafting of the Rights of
Man, proposed, on August 17, 1789, the following provision: “ Being
the expression of the general will (volonte generale), the law must be
general with respect to its object.” Hence, one article of the Declara
tion of the Rights of Man and Citizen contains a provision that the
law is the expression of the general will (volonte generaJe). This was
restated in Article 6 of the Declaration of 1793 and in Article 6 of the
Constitution of the Annee III. During the Revolution, in the Consti
tution of 1791 and the Jacobinist Constitution of 1793, a distinction
was made between laws (his) and decrees (ddcrets). The Girondist
Constitution of 1793, which was under the decisive influence of Con-
dorcet, emphasized sharply in Section 2 of Article 4: “ The distinctive
characteristics of laws are their generality and their unlimited dura
tion/' and it distinguishes laws from measures (mesures) for an emer
gency case.
The German doctrine is deeply indebted to the French doctrine but,
toward the end of the nineteenth century, it diverged widely from it.
Robert von Mohl, Lorenz von Stein, and Klueber viewed the demand
for the generality of the law as the central problem of political theory.
Yet under the pervasive influence of Paul Laband this doctrine became
enfeebled and was replaced by the distinction between formal law
and material law. Every utterance of the will of the state is considered
as formal law, whereas only those utterances which contain a legal
norm, i.e., which produce subjective rights and duties, are considered
as material laws. The budgetary law, in this sense, is not a material
law since it only enables the state to make expenditures within the
framework of the budget. This dualistic theory was generally accepted
by German jurisprudence.
Notwithstanding the fact that the theory of the supremacy of Par
liament was victorious in England, there too the general character of
law was not neglected. Blackstone even asserted that an individual law
is “ a declaration rather than a law." (Commentaries of the Laws of
England, Vol. I, p. 44). Even Austin, the most extreme representative
of Hobbes’s concept of politcal law, asserted that one could speak of a
law only if it has a general character. But in the only case in which an
English court dealt with the question of whether individual measures
have the character of law, this question was answered in the affirmative.
This decision is of the greatest interest because the judges discussed the
reasons why in this particular case an individual measure must be a law.
The decision deals with the validity of a measure of a colonial high
commissioner, by which a native was deprived of his freedom. The
question was how far such an individual measure could suspend liber
ties which had been guaranteed by the Habeas Corpus Act. Lord
Justice Farwell deduced the legality of the measure as follows: “ The
truth is that in countries inhabited by natives who outnumber the
whites, such laws [as the Habeas Corpus Act], although bulwarks of
freedom in the United Kingdom, might very probably become the
death sentence of the whites if they were applied there [i.e., in the
colonies]/’ Lord Justice Kennedy added that legislation which is ori
ented toward a single person, is a privilege and “ generally, so I hope and
believe, such legislation recommends itself to a British legislator just as
little as it appealed to the legislators of ancient Rome.” (Rex versus
Crewe; ex parte Sekgome; 1910; 2 K. B. 576.) This case clearly stresses
the double-edged character of the general law in a society characterized
by decisive conflicts of interests.
The postulation of the generality of law is accompanied by the
repudiation of the retroactivity of law. “ Retroaction is the most evil
assault which the law can commit. It means the tearing up of the so
cial contract, and the destruction of the conditions on the basis of
which society enjoys the right to demand the individual’s obedience,
because it deprives him of the guarantees of which society assured him
and which were the compensation for the sacrifice which his obedience
entailed. Retroaction deprives the law of its real legal character. A
retroactive law is no law at all.” This is the way in which Benjamin
Constant characterized the retroaction of laws (Moniteur, June 1,
1828, p. 755). This notion, too, is directly derived from Rousseau’s
theory. It was adopted by the Declaration of the Rights of Man and
Citizen, by the Constitution of 1793 and by the Constitution of the
Ann6e III, although today there exists neither in England nor in France
any obstacle against the enactment of retroactive laws. In Republican
Germany, however, the Weimar Constitution assigned the status of a
constitutional guaranty to the prohibition of retroactive criminal laws.
Such a theory of the formal structure of law leads automatically to a
specific theory of the relation between the judge and the law. If the
law and nothing but the law rules, then the judge has no other tasks
than cognitive ones. Judges, as Montesquieu had remarked, are only
“ the mouthpieces of the law and inanimate things.” Owing to this
alleged insignificance, the acts of the judge are en quelque fafon nul
(Montesquieu, Esprit des Lois xi, 6). This phonographic theory of the
judicature is, of course, closely bound up with the theory of the separa
tion of powers, i.e., with the assertion that creation of law and legisla
tion are identical, and that, apart from the process of legislation, law
can be created neither by society, by judges nor by administrative of
ficials. Cazates expressed this notion most clearly when he said: “ In
any political society there are merely two powers, one that creates law
and another one that sees to its execution. The power of the judges
. . . exists only in the plain and simple application of the law. . . .”
(Archives parlementaires, series 1, vol. X I, p. 892). Similar ideas, how
ever, were already to be found in the Federalist, in Hobbes and in
Hale’s History of the Common Law.
The legal system of liberalism, therefore, was regarded as a closed
system without gaps. All the judge had to do was to apply it. The
juridical thinking of this epoch was called positivism or normativism,
and the interpretation of the laws by the judge was called the dogmatic
interpretation (in Germany) or exegetical interpretation (in France).
Bentham, too, in order to achieve complete intelligibility and clarity
in the legal system, recommended the codification of English law, for
“ a code formed upon these principles would not require schools for
its explanation, would not require casuists to unravel its subtleties. It
would speak a language familiar to everybody: each one might con
sult it at his need___ No decision of any judge, much less the opinion
of any individual, should be allowed to be cited as law until such de
cision or opinion have been embodied by the legislator in the code.
. . . If any commentary should be written on this code, with a view of
pointing out what is the sense thereof, all men should be required to
pay no regard to such comment, neither should it be allowed to be
cited in any court of justice in any manner whatsoever. . . . If any
judge should in the course of his practice see occasion to remark any
thing in it that appears to him erroneous in point of matter . . . let him
certify such observation to the legislature with the reasons of his
opinion and the correction he would propose.” 10 It is of great im
portance that, above all, the French Revolution was not content with
the merely doctrinal form of the proposition that judges may not create
law but attempted to institutionalize it. This development started with
the famous formulation of Robespierre: “ The statement that law is
created by the courts . . . must be expelled from our language. In a
State which has a constitution and a legislature, the jurisprudence of
the law courts consists only in the law.” (Archives parlementaires,
series 1, vol. X X , p. 516.) The decrees of August 16 and 24, 1790, con
sequently, prohibit the interpretation of laws on the part of the judge
and request him to appeal, in all doubtful cases, to the legislature. The
functions of the so-called Refer6 Legislatif were fulfilled later on by
the Tribunal de Cassation and, subsequently, by the Cour de Cassation,
which institutions were constituted not as courts but as a part of the
legislative. Later, owing to the influence of Portalis, this impracticable
doctrinaire attitude was given up and in the Code Civil freedom of in
terpretation on the part of the judge was re-established. According to
Portalis, the judge is supposed to fill any legal gaps in accordance with
“ the natural light of legal sense and common sense.” But this idea was
not incorporated into French legal theory; on the contrary, especially
after 1830, the exegetical school was victorious. The year 1830 really
is the turning-point in French legal theory. Henceforth laws are inter
preted in a dogmatic manner, the legal system is regarded as a closed
one, the “ phonograph” theory is rigorously applied, and the law-creat
ing function of the judge is denied. Henceforth there is no recourse to
considerations of justice or appropriateness.
Similar developments took place in Germany. On April 14, 1780,
Frederick II of Prussia prohibited the interpretation of laws. Article
4 of the Introduction to the Allgewcincs Landrccht prohibited inter
pretations which conflicted with the literal sense of the words or gram
matical contexts in which the laws were framed. Feuerbach is probably
the author of the Bavarian order of October 19 ,18 13 , which prohibited
the writing, by officials and private scholars, of commentaries on the
Bavarian code of criminal law of 18 13 . On this point Feuerbach's ad
versary, Savigny, took the same view. Savigny and the historical school
of law regarded only law, the folk-spirit, and customary laws as genu
ine sources of law. Savigny likewise viewed the legal system as closed,
unified, and complete, the judge having only to apply the truth, not
to create it. During the whole of the nineteenth century the German
theory of the application of law was dogmatic.
The theory of the separation of powers, upon which this theory of
legal application depends, does not imply, however, that the three di
vided powers are of equal value. Since Locke it has always asserted the
preeminence of the legislative power. Hence, during the whole of the
nineteenth century, and in Germany until 1919, the right of the ju
diciary to examine laws which have been properly enacted was denied.
German constitutional theory was split in this respect, the liberals
favoring judicial review, the conservatives rejecting it. Yet although
the majority at the fourth annual meeting of German jurists in 1863
declared itself in favor of judicial review, the number of its proponents
declined rapidly under the rule of Bismarck. In practice such a right
was consistently rejected and only the examination of laws with ref
erence to the compatibility of state law and federal lawr was permitted.
W hat are the social causes and consequences of the theory of the
rule of law, of the denial of natural law, and of the absolute subordina
tion of the judge to the law? In England, in Germany, and in France
the belief in the rule of law expressed both the strength and the weak
ness of the bourgeoisie. The proposition of the supremacy of statutory
law implied the additional proposition that social change may be
carried out only by legislation. The priority of legislation is maintained
because the middle classes, at least in England and France, partici
pated to a significant degree in the legislative process. Laws, however,
always involve interferences with liberty or property. If such interfer
ences can only be undertaken on the basis of laws, and if the bour
geoisie is, to a decisive degree, represented in Parliament, then this
doctrine implies that the social class which is the object of interven
tion will itself determine the content of those interferences and will,
of course, see to it that its own interests are taken into account. If Par
liament is the chief agent of social change, then the rule of the laws of
Parliament will also operate as an instrument to prevent, or at least
to retard, social progress. This doctrine, therefore, veils the unwilling
ness of the ruling classes to give way to social reforms, for the slowness
of the parliamentary machinery transforms the sole means of legal
change into a means for the preservation of the status quo. Finally,
the doctrine has an ideological function, namely, that of disguising the
real holders of power in the state. The invocation of the law as the sole
sovereign and the dictum that sovereignty is “ a government of laws
and not of men” make it superfluous to mention that, in reality*, men
do rule, even when they rule within the framework of the law. Hence,
the supremacy of the laws of Parliament forms the center of the con
stitutional doctrine only as long as the middle classes are able to wield
decisive influence in Parliament. As soon as this influence wanes, there
appear new natural-law doctrines which are designed to reduce the
predominance of a Parliament in which representatives of the working
classes also exert influence. At the same time, the doctrine of the su
premacy of Parliament hides the weakness of the middle classes. The
dictum that social changes can be attained only through laws enacted
by Parliament, and that administrative agencies and judges may only
apply law but not create it, is an illusion which also serves to deny the
law-creating capacity of extra-parliamentary forces. This doctrine clearly
reveals the ambivalent position of modern man—the emphatic asser
tion of the autonomy of man is accompanied by the equally passionate
insistence on the rule of the state.
The rule of law is, moreover, necessary as a pre-condition of capi
talist competition. The need for calculability and dependability in the
legal system and in administration was one of the motives for restrict
ing the power of the patrimonial princes and of feudalism, leading ulti
mately to the establishment of Parliament with the help of which the
bourgeoisie controlled the administration and budget while participat
ing in the modification of the legal system. Free competition requires
the generality of law because it is the highest form of formal rationality.
It requires also the absolute subordination of the judge to the law and
therewith the separation of powers. Free competition depends upon
the existence of a large number of competitors of approximately equal
strength who compete in a free market. Freedom of the commodity
market, freedom of the labor market, free selection within the entre
preneurial class, freedom of contract, and, above all, calculability of
the decisions of the judiciary are the essential characteristics of the
liberal competitive system which, through continuous, rationalistic,
and capitalistic enterprise, produces a steady flow of profits. It is the
primary task of the state to create such a legal order as will secure the
fulfilment of contracts. A high degree of certainty of the expectation
that contracts will be executed is an indispensable part of the enter
prise. However, this calculability and predictability, if the competitors
are approximately equal in strength, can be attained only by general
laws. These general laws must be so definite in their abstractness that as
little as possible is left to the discretion of the judge. In such a society
the judge, therefore, is forbidden to have recourse to Generalklauseln.
The state, if it intervenes in the individual’s disposition of his liberty
or property, must render its interventions calculable in advance. It
may not interfere in a retroactive manner, for that would negate all
existing expectations. It may not intervene extra-legally because such
an intervention would be unpredictable. It may not intervene by in
dividual measures because such an intervention would violate the
principle of the equality of competitors. The judge, moreover, must be
independent and litigations must be decided without regard for the
desires of the government. Hence there must be a separation of powers
which, quite apart from its political significance, is of the greatest im
portance for the organization of the competitive system since it Dro-
The Change in the Function ot Law in Modern Society (41)
vides for a division of competences and fixes the limits among the vari
ous activities of the state, guaranteeing thereby the rationality of law
and its application. This scheme solves the apparent contradiction in
the liberal attitude toward legislation. This contradiction, which Ros-
coe Pound detected in the attitude of the American Puritans, consists,
on the one hand, in the negative attitude toward every kind of legisla
tion and, on the other hand, in the firm belief in legislation associated
with the rejection of customary law and the law of equity. This is the
attitude not only of Puritanism but of liberalism as a whole. The latter
postulated the superiority of parliamentary legislation in order to pre
vent legislation or, as far as that is impossible, to make this legislation
serviceable to the interest of the bourgeoisie. In principle liberalism al
ways disliked state intervention.
The theory of the rule of general laws has, of course, never been fully
realized in any stage of the development of competitive capitalism.
Liberal society is not a rational one, and its economy is not planfully
organized. Harmony and equilibrium are not, at any given moment,
automatically restored. Measures of the sovereign and “ general princi
ples” are, at all stages, indispensable. The contract becomes the instru
ment for dislodging free competition, terminating therewith the rule
of the contract and of the general law on which the contract in the
economic sphere is based. According to the legal theory of liberalism
(and there it is in opposition to Adam Smith), freedom of contract
implies the right of the entrepreneur to form organizations, cartels, cor
porations, syndicates, employers' associations, and finally the monopo
listic trust which dominates the market. Since the legal theory of
liberalism discarded the social postulates of Adam Smith’s classical
liberal theory—namely, his objection to unrestricted competition,11
his demand that the competitors be equal, his fight against monopolies,
his declaration for the unification of the capital-providing and the
managerial functions in the same individual—i.e., in the property-
owner—and, accordingly his fight against the joint stock company—it
arrived unanimously at the conclusion that freedom of contract meant
nothing but the freedom to conclude freely any kind of contract if
there were no express legal prohibitions, even such contracts as would
mean the end of free competition. The transformation of the concept
of the freedom of contract from a social concept, implying the ex
change of equal values among equally strong competitors, into a
formal, juridical concept contributed to the development of the system
of monopolistic capitalism, in which contract and general laws were
to play a strictly secondary role.
IV
Yet general laws and the principle of the separation of powers have
still another function. This function is ethical in character and is most
clearly expressed in Rousseau's philosophy of law. The generality of
laws and the independence of the judge guarantee a minimum of
personal and political liberty. The general law establishes personal
equality, and it forms the basis of all interferences with liberty and
property. Therefore the character of the law which alone permits such
interference is of fundamental significance. Only when such inter
ferences are controlled by general laws is liberty guaranteed, since in
this manner the principle of equality is preserved. Voltaire's statement
that freedom means dependence on nothing save law12 refers only to
general laws. If the sovereign is permitted to decree individual meas
ures, to arrest this man or that one, to confiscate this or that piece of
property, then the independence of the judge is extinguished. The
judge who has to execute such individual measures becomes a mere
policeman. Real independence presupposes the rule of the state
through general laws. Generality of the laws and independence of the
judge, as well as the doctrine of the separation of powers, have there
fore purposes which transcend the requirements of free competition.
The basic phenomenon underlying the generality of law—namely, the
legal equality of all men—has never been disputed by liberalism.
Equality before the law is, to be sure, "‘formal," i.e., negative. But
Hegel, who clearly perceived the purely formal-negative nature of lib
erty, already warned of the consequences of discarding it.
All three functions of the generality of laws—obscuring the domina
tion of the bourgeoisie, rendering the economic system calculable, and
guaranteeing a minimum of liberty and equality—are of decisive im
portance and not just the second of these functions, as the proponents
of the totalitarian state claim. If one views—as, for example, Carl
Schmitt does—the generality of laws as a means designed to satisfy the
requirements of free competition, then the conclusion is obvious that
with the termination of free competition and its replacement by organ
ized state capitalism, the general law, the independence of judges, and
the separation of powers will also disappear, and that the true law then
consists either in the Fiihrer’s command or the general principle
(Generalldausel).
V
The juridical forms which were created by the competitive society of
the nineteenth century were different in Germany and England. The
specifically German phenomenon is the Rechtsstaat; the specifically
English phenomenon is the supremacy of Parliament combined with
the rule of law.
The idea of the Rechtsstaat is perfected in Kant’s system. There it
appears as the creation of the German Biiergerstum—an economically
ascending but politically stagnant class. This class was content with the
legal protection of its economic liberty and was resigned to its exclusion
from a share in political power. The essence of this concept of the
Rechtsstaat consists in the distinction of the legal form from the
political structure of the state. This isolated legal form, independent
from the political structure, was to constitute the guaranty of freedom
and security. This was the fundamental difference between German
and English theory. In the former the Rechtsstaat did not develop into
a specifically juridical form of democracy, as was the case in England.
It rather assumed a neutral attitude toward the form of the state. This
indifferent attitude is most clearly expressed in the writings of Friedrich
Julius Stahl. “ The state should become a Rechtsstaat This is the solu
tion of our problems and the motivating force of our age. . . . The
state should define and secure the modes and limits of its own activities
as well as the citizens’ sphere of freedom in strict accordance with law.
It should not realize the ethical idea directly (i.e., in a coercive man
ner) beyond the limits of legality—which means it should, in this
sphere, not attempt to do more than the most indispensable ‘fencing
in.’ The concept of the Rechtsstaat does not mean that the state merely
manages the legal order without administrative aims nor that it merely
protects the rights of the individual. It does not refer to the goal or
content of the state’s activity at all but only to the mode and character
of their realization.” 13 Stahl’s definition was accepted even at times
explicitly by the liberal theorists of the Rechtsstaat: Gneist,14 Robert
von M ohl,15 Otto Baehr,16 and Welcker.17 This conception of the
Rechtsstaat, which Stahl elaborated in passionate criticism of de
Maistre and Bonald, culminates in the denial that the monarch is the
Lord's representative on earth and concludes with the assertion that
the monarch may rule not against the law but only together with the
representatives of the people and only by means of the bureaucracy.
Stahl’s definition reveals two things distinctly: (1) the state also has
administrative tasks which are not controlled; (2) the legal form, on
the other hand—i.e., the rule by law—is independent of the form of
the state.
In English constitutional theory both factors—sovereignty of Parlia
ment and the rule of law—receive equal emphasis. This was already
visible in Blackstone. The English middle classes, in contrast to the
German, safeguarded their economic freedom not materially, i.e., by
establishing barriers against the legislation of Parliament, but geneti
cally, i.e., through participation in the making of laws. The English
theory is, however, not really indifferent toward the structure of the
concept of law (cf. Dicey’s famous Introduction to the Study of the
Law of the Constitution). The German theory of law had little interest
in the genesis of laws and concerned itself with the interpretation of
positive laws regardless of their origin. The English middle classes took
an essentially political interest in the genesis of laws. The German
theory is liberalist-constitutional; the English theory is democratic-
constitutional. The English bourgeoisie expressed its preference
through the medium of Parliament; the German bourgeoisie found
the laws of constitutional monarchy in existence and systematized and
interpreted them in order to secure a minimum of economic liberty in
the face of a more or less absolute state. In the English theory, there
fore, there is no serious discussion about the formal structure of laws,
while German theory is replete with investigations into the nature of
law.18 The German theory, in the views of its foremost representative,
Laband, whose ideas also became those of the dominant circle of legal
theorists, clearly manifests the political weakness of the German bour
geoisie.
After 1848 the independence of the judge was no longer contested.
He applied the laws literally. Discretion, which is most visible in
“ general principles” (Generalklauseln), plays no role. In the first thirty
volumes of decisions of the Supreme Court, “ general principles” are
hardly ever mentioned.19 The police article of the Allgemeine Land-
*ccht, the most important “ general principle” of administrative law,
likewise had fallen into oblivion. As late as 19 12 the Second Congress
of German judges adopted the following resolutions:20 “ (1) The power
of the judge is subordinated to the law. The judge, therefore, is never
allowed to deviate from the law. (2) Ambiguity of the content of a law
does not entitle the judge to decide according to his own discretion;
doubts are to be dissolved by interpretation of the law with regard to its
meaning and purpose, and, wherever possible, by analogy. (3) If a law is
subject to divergent interpretations, the judge has to give preference to
that interpretation which corresponds best to legal understanding
and to current social needs/'
This attitude of the judges toward the law during the period of
William II is understandable. The state, then, knew how to retain its
influence over the judge despite the latter's independence. The social
position of the judge was definitely fixed. He began his career as a
reserve officer and thus learned the significance of obedience and disci
pline. Chief justiceships and court presidencies were almost exclusively
filled by former state attorneys, who, in contrast to the judges, had
previously been public officials controlled by orders from above. Having
become court presidents, they still knew how to fulfil the wishes of
ministers, even when these were not distinctly expressed. Finally, the
Prussian judge, especially if compared with his English colleague, was
a poorly paid official. He had to wait for years before he was finally
appointed, so that only members of the moderately well-off middle
classes could afford to enter the profession. The judge of this period
exhibited all the characteristics of the class of his origin: resentment
against the manual worker (especially when he was organized and well
paid), reverence toward throne and pulpit, and, at the same time,
complete indifference toward financial capitalism and monopoly capi
talism. The judges represented the alliance between crown, army,
bureaucracy, landlords, and bourgeoisie. Their interests and those
which sprang from the constellation of the above strata were identical,
and since the laws corresponded to these interests, there was no reason
to apply them in any but a literal manner. Neither was there any room
for any kind of natural law. The German bourgeoisie was satisfied with
its relations with the state. Judges and jurists no longer had to appeal
to a natural-law system in order to fight a system of positive law which
was hostile to them. Hence, both natural law and philosophy of law
disappeared. Positivism was victorious not only as regards the applica
tion of law (in that respect it was progressive) but also as far as the
theory of law was concerned, which amounted to doing away with all
legal theory and uncritical acceptance of supine relativism. The com
plete repudiation of natural law during the second half of the nine
teenth and the beginning of the twentieth centuries was most defi
nitely voiced by Windscheid:21 “ Yes, we do not mind saying it: The
law which we have and which we create is not the law. In our eyes there
is no absolute law. The dream of Natural Law has been dissipated.”
This striving for legal security was sharply expressed by Karl Bergbohm
when he remarked that whoever thinks of a law “ which is independent
of human creation” has been “ corrupted” by the idea of natural law.22
Even though it represented the coalition of the ruling classes, the
Rechtsstaat was not, however, a despotism. The generality of the law
and the independence of the judge both contained elements transcend
ing the functions of obscuring the actual distribution of power and the
maintenance of calculability. The separation of powers was, it is true,
not only an organizational division of powers; it was, at the same time,
a distribution of political power among the various groups of that
coalition. Yet this class rule was calculable, predictable, and, hence, not
arbitrary. Furthermore, owing partly to the fusion of the Prussian-
conservative proponents of the police state with large-scale industrial
ists and partly to the concessions which the state had to make to the
proletariat which was increasing in strength, the poor and the workers
benefited to a large extent from the rationality of law. This was all the
more true after the development of a system of law permitting poor per
sons to sue without cost which after 1918 experienced an extraordi
nary expansion and made the legal system of the Weimar period the
most rationalized system in the world. It was rational not only in the
sense of creating calculability but also in an eminently social sense,
in so far as the advantages of rational law also benefited the working
classes and the poor. This evolution represents a contrast to England,
where even today a rationality which favors the status quo is guaranteed
by the totally inadequate development of the poor law and by the fact
that owing to the extraordinarily high costs of legal proceedings and
the concentration of the administration of justice in the High Court
of Justice the broader strata of the population are practically without
legal protection. The legal system of the period under discussion thus
centers around the following elements—personal, political, and eco
nomic liberties which imply the priority of these liberties vis-a-vis the
state. The structure of the system may be summarized as follows:
1. The formal structure of the legal system—These liberties were
guaranteed by formal, rational law, i.e., by general laws and by their
strict application by independent judges, by the rejection of legislation
by the judiciary, and by the opposition to “ general principles” (Gen-
eralklauseln).
2. The material structure of the legal system—This legal system was
oriented, economically, toward free competition. It found expression
in the auxiliary guaranties of private property and in the freedom of
contract and enterprise.
3. The social structure of the legal system.—Socially it was oriented
toward a situation in which the working class did not constitute a
serious threat.
4. The political structure of the legal system.—Politically it was
oriented toward a system in which the separation and distribution of
political power prevailed: in Germany toward a situation in which the
bourgeoisie did not play a politically decisive role; in England, on the
other hand, toward one in which the bourgeoisie determined the con
tent of the law and in which the power of Parliament was distributed
among crown, aristocracy, and bourgeoisie.
VI
During the period of monopoly capitalism, which in Germany began
with the Weimar Republic, legal theory and legal practice have under
gone a decisive change. In order to facilitate an understanding of these
legal changes, it is more useful to consider the political structure of the
Weimar democracy than to describe economic developments which
have moreover been extensively treated elsewhere. The decisive politi
cal characteristic of the German republic was the significance of the
workers' movement after 1918. The middle classes were no longer able
to ignore the existence of class conflicts as the earlier liberals had done.
It had rather to acknowledge this conflict and to try somehow to con
struct a constitution in the light of it. Here, too, the contract was the
technical means used since it alone makes possible the necessary politi
cal compromise. The contention that civil society originated in the
social contract implies the insight that contractual relations represent
a deeply important component in the functioning of society. Modern
society docs, indeed, exist in large measure through contractual rela
tions and not only in the economic sphere. Powerful social groups
unite, make their interests appear as the only legitimate ones, and
thereby sacrifice those of the population at large. The formation of the
German republic laid bare the true function of the social contract. The
republic began with the following contracts: the most important one
was the contract between Ebert, on the one hand, and Hindenburg
and Groener, on the other hand (its conditions have been outlined by
Groener as one of the witnesses of the “ stab in the back” trials at
Munich). This contract provided, on the positive side, for the re
establishment of “ peace and order,” and, on the negative one, for the
fight against bolshevism.23 The so-called Stinnes-Lcgien Agreement of
November 15, 1918, was to effect the same result in the social sphere;
employers promised not to tolerate “ yellow” labor unions and to recog
nize only independent unions, to co-opcratc with them, and to fix
working conditions by means of wage contracts. Actually this agree
ment not only meant the end of bolshevism but it also meant the end
of the possibility of any kind of socialism and provided the basis of the
system under which Germany lived from 19 18 to 1930. On March 4,
1919, the Social Democratic party of Berlin and the Reich government
agreed on the introduction of factory councils and the legalization of
their position in the Constitution. It was made clear that such factory
councils would have nothing to do with the revolutionary workers' and
soldiers’ councils or Soviets. By the agreement of January 26, 1919,
between the Reich and the federal states, the federal set-up of the
Reich was preserved. The fifth and final contract (which really in
cluded all the preceding ones) between the three Weimar parties—the
Center, the Social Democratic, and the Democratic parties—provided
for the preservation of the old bureaucracy and judiciary, rejected the
Soviet system, stabilized the political power of the church, sanctioned
civil liberties, even though they were somewhat restricted by new social
fundamental rights, and introduced parliamentary democracy.
The Weimar system has been called “ collectivist democracy” be
cause, ostensibly, the formation of political decisions was to be achieved
not only through the summation of the wills of individual voters but
also through the agency of autonomous, social organizations. The
state was to remain neutral vis-a-vis these free organizations. To the
extent that this occurred, the Weimar state fulfilled the program of
political pluralism.24 The sovereignty of the state was no longer to be
exercised by an independent bureaucracy, by the police and the army,
but was supposed to rest in the hands of the entire populace which,
for this purpose, would organize itself in voluntary associations. This
pluralistic system did not ignore the class struggle but attempted rather
to transform it into a form of inter-class co-operation. Hence, the
Weimar democracy rested to a decisive extent on the idea of parity—a
parity between social groups, between Reich and states, and between
the various churches. Although this phenomenon occurred in its purest
form in Germany, parallel tendencies existed in England and France.
A contractual system can exist only as long as the parties exist, as
long as they desire to maintain the contracts, or if, in the event that
they do not wish or are unable to fulfil them, there is a coercive agency
which can enforce their execution. In Germany, however, the Demo
cratic party disappeared almost completely. New parties—above all, the
National Socialist party—were founded which, by 19 31, surpassed the
old parties in numerical strength. The developing crisis made it im
possible for the capitalistic partners to the contracts to fulfil their
contractual obligations, especially those bearing on the maintenance
of the social institutions. A neutral coercive power naturally did not
exist, the idea of the neutral state being only a fiction. As already men
tioned, in the sphere of public law as well as in that of private law, the
contract necessarily produces power. In other words, the system of
contracts, in the political sphere too, contains within itself the elements
of its own destruction. The proponents of pluralism who seek to realize
the “ people’s state” by reducing the part played by the independent
bureaucracy, by the army and the police, and by handling the affairs
of the state through agreements of voluntary associations, increase in
reality the power of bureaucracy, reduce the political and social signifi
cance of the voluntary associations, and thus strengthen the tendencies
which lead to the authoritarian state. In Germany, by 19 31, the
system of wage bargaining had almost ceased to function. W hile
compulsory arbitration by the state was, according to the original
intention, to come into play in the relations between employers
and employees only when, in exceptional cases, the parties were un
able to agree, state intervention actually became the normal case
and voluntary agreements were reached only in order to avoid com
pulsory intervention. Moreover, structural changes in the organization
of production and distribution—e.g., the rationalization and mech
anization of industry—had powerful consequences for the working
class. The balance of power shifted and the decisive position of the
old unions of highly skilled workers passed, on the one hand, to
the foremen and other supervisory workers, and, on the other hand, to
the large mass of unskilled and semiskilled workers, who were more
difficult to organize. This development, of course, impaired the power
of the labor unions very considerably. They were further weakened by
the economic crisis and by the strength of their monopolistic adver
saries. Strike statistics demonstrate how little will to fight they retained.
The equilibrium of the classes had found its constitutional expression
in the second part of the Reich Constitution which bore the title:
“ Fundamental Rights and Fundamental Duties of the German Citi
zenry/’ There the old classical and the new social rights are juxtaposed
in an unrelated manner, so that it was justifiable to say that the W ei
mar Constitution was a decisionless constitution.25 Structural-eco
nomic changes in conjunction with the increasing impotence of Parlia
ment added tremendously to the strength of the bureaucracy. The
increment in strength was especially great in the case of the ministerial
bureaucracy.
These changes in the economic and political structure were accom
panied by profound changes in legal theory and legal practice.26 It has
been stated already above that, under the influence of Laband, German
legal theory had discarded the concept of the generality of laws and
had set up instead a division into formal and material laws. Suddenly,
however, the postulate of the generality of laws was revived, particularly
in the writings of Carl Schmitt and his school. Schmitt asserted that
the term “ law,” as far as it had been used in the Weimar Constitution,
referred merely to general laws, and that the Reichstag, therefore,
could only create general laws. The legislative power of the Reichstag
consequently was restricted by its inability to decree individual meas
ures. In order to prove his thesis he referred to the historical develop
ments mentioned above, and to Article 109 of the Weimar Constitu
tion which states that all Germans are equal before the law. The theory
that the state may rule only through general laws applies to a specific
economic system, namely, one of free competition. But it was exactly
with respect to the economic sphere that Schmitt’s theory indicated
the postulate of the rule of general laws. The political meaning of this
renaissance is not difficult to perceive. Schmitt himself developed this
thesis at first for the purpose of showing that the laws providing for
the expropriation of the German princes had been unconstitutional
because they violated the principle of equality before the law and the
postulate of the generality of laws. Yet Schmitt’s theory presupposes
that the principle of legal equality relates not only to the administra
tion and the judiciary but also to the legislative power, i.e., in Schmitt’s
opinion the principle did not mean only what it had meant formerly,
namely, that promulgated laws must be dutifully applied by state
officials regardless of differences in the status of citizens, without
hatred, and without prejudice. For Schmitt it also meant that the
principle binds the legislative power itself and prevents it from creating
laws in which equal situations were differently treated. It is of course
true that Haenel, the liberal constitutional jurist and politician, once
supported this thesis in his arguments against Bismarck’s laws expropri
ating the Polish minority. But his thesis had been universally rejected.
Now this old idea was revived in order to add new checks to the sover
eignty of Parliament in addition to those which were already provided
by constitutional clauses concerning changes in the Constitution.
Heinrich Triepel was the first to try to prove that the principle of
equality would prohibit, in the case of the federal decree concerning
gold balances, depriving stockholders of the value of their shares. Soon
an enormous literature arose in order to prove that this principle of
legal equality, at bottom, represented the basic fundamental right and
that the Parliament was as much bound by it as were the administra
tion and the judiciary.
But even if the principle of equality before the law is also supposed
to be binding for the legislative, it does not at all follow that such
equality is attainable only through general laws. The assertion that
equality can be realized only by general norms is a reiteration of Rous
seau’s demand which, in his case, is reasonable and intelligible because
he was discussing general law with reference to a society in which there
was to be only small property or common property. Private property,
which is sacred and inviolable, according to Rousseau, is property
only to the extent that it remains an individual and particular right.
“ If it is regarded as common to all citizens, it is subject to the general
will [volont^ gdndrale] and may be infringed on or denied by this will.
Thus the sovereign has no right to touch the property of one or several
citizens. But he may legitimately seize the property of all/'27 On the
other hand, Rousseau also postulates the rule of general laws for situa
tions in which property is socialized, as he has described it in his pro
jected Corsican Constitution. 'T a r from desiring that the state be poor,
I prefer on the contrary, that it should possess everything and that
individuals share in the common wealth only in proportion to their
services/’28 Thus Rousseau believed that the volonte generale could be
expressed in general laws only in societies with equally distributed small
property holding or with socialized property. The rule of law really
obtains in Rousseau’s system, and there is no room for force since in
the social system which Rousseau postulated the state has no functions.
"Since individual property ownership is so slight and dependent, the
government has little need for force and controls the citizenry with
gestures of the finger, so to speak.” 29 In a monopolistically organized
system the general law cannot be supreme. If the state is confronted
only by a monopoly, it is pointless to regulate this monopoly by a
general law. In such a case the individual measure is the only ap
propriate expression of the sovereign power. Such an individual meas
ure neither violates the principle of equality before the law nor runs
counter to the general idea of the law, as the legislator is confronted
only w’ith an individual situation. Thus in the economic sphere the
general law presupposes economic equality within the capitalist class.
German legislation between 1919 and 1932 did indeed create special
measures with regard to individual monopolistic enterprises; the emer
gency decree of the president of the Reich of July 13, 19 31, prohibited
the application of the regulations concerning insolvency to the insol
vent Darmstaedter Bank, and therewith ordered a special regulation for
one powerful monopoly because only this one vital bank was in danger.
The postulate that the state should rule only by general laws becomes
absurd in the economic sphere if the legislator is dealing not with
equally strong competitors but with monopolies which reverse the prin
ciple of the free market. The renaissance, under the Weimar democ
racy, of the notion of the generality of laws and its indiscriminate ap
plication to personal, political, and economic liberties, was thus used as
a device to restrict the power of the Parliament which no longer repre
sented exclusively the interests of the big landowners, of the capitalists,
of the army, and of the bureaucracy. Now the general law, within the
economic sphere, was used in order to preserve the existing property
system and to protect it against intervention where such was regarded
as incompatible with interests of the above-named groups.
Before 19 14 the discussion concerning the formal structure of laws
was exclusively theoretical, because, as has been stated, the examina
tion of laws on the part of the judge (judicial review) was not per
mitted. Now these theoretical discussions became political questions
of great practical importance because the German supreme court sud
denly accepted the principle of judicial review. In its decision of April
28, 19 21,30 the supreme court asserted that it had always upheld its
right of examining whether or not laws were constitutional—an asser
tion which, as the technical literature stated almost unanimously, was
a sheer falsehood. At any rate, the recognition of judicial review repre
sented a redistribution of power between state and society. The greater
the power of the state, the more readily will the judge submit to its
authority. The weaker the state, the more he will try to realize his
private class interests. The recognition of judicial review operated
favorably to the existing social order. This is unmistakably shown by
an analysis of all those decisions which affirmed the court's power of
review.31 All these decisions dealt with the question of whether or not
a particular law violated Article 153 of the Weimar Constitution,
which guaranteed the security of private property. The supreme court
likewise accepted the theory that the principle of legal equality bound
the Parliament, so that “ arbitrary" laws were to be considered as being
unconstitutional. Thus, in both theory and practice Articles 109 and
153 of the Weimar Constitution served to prevent interference with
the existing property system.
This recourse to the ideas of legal equality and generality is really a
disguised revival of natural law which is now fulfilling counterrevolu
tionary functions. The older system of positivism would, in the period
after 1918, have imperiled the position of monopolies because the
positive legal order no longer corresponded with the interests of the
monopolies. Hence the existence of a system of natural law was now
openly discussed. Carl Schmitt, by adopting the American theory of
the “ inherent limitations upon the amending power,” tried to distin
guish between amending and violating modifications of the Constitu
tion. He was of the opinion that amendments to the Constitution
could not assail the “ Constitution as a basic decision.” Constitutional
amendments might modify only certain aspects of the Constitution.
(54 ) The Change in the Function of Law in Modem Society
The fundamental decisions regarding value preferences which the
Constitution embodies, Schmitt thought, could not be modified even
by the qualified parliamentary majority which had the power to amend
the Constitution. The members of the supreme court were moved by
a similar thought when, during a meeting in 1924, they commented
upon the revaluation decree (which was the first emergency taxation
decree). They decided: “ This notion of good faith [Treu und Glauben]
stands beyond individual laws and beyond individual positive-legal pro
visions. No legal order which deserves this title of honor can exist with
out this principle. Hence, the legislator, by his power, cannot obstruct
a result which is imperatively demanded by good faith [Treu und
Glauben]. It would be a grave offense against the prestige of the govern
ment and the sense of justice if someone who based his claim on a new
law would be dismissed by a law court because his appeal to the law
violated the principle of good faith.” 32 The judges of the supreme court
likewise announced that a contractor of a mortgage who would base his
claim on the above-mentioned emergency taxation decree would lose
his case because his defense against the mortgagee would have to be
considered as violating the principle of good faith. James Goldschmidt,
professor of criminal and civil procedure at the University of Berlin,
supported the judges of the supreme court, and in order to prove the
correctness of their decision he invoked the old principles of natural
law and the right of resistance of the people against the unlawful exer
cise of power by the state.33 Hermann Isay even went farther and con
ceded to the judge the right of examining each law as to its compati
bility with the popular sense of justice. A vast body of literature was
written on the subject, and a new kind of natural law seemed to be in
the process of establishment.
However, a kind of secret natural law had been continuously applied
throughout this period. The period from 19 18 to 1932 was character
ized by the almost universal acceptance of the doctrine of the “ free
law” school, by the destruction of the rationality and the calculability
of law, by the restriction of the system of contracts, by the triumph of
the idea of command over that of the contract, and by the prevalence
of “ general principles” over genuine legal norms. The “ general prin
ciples” transformed the whole legal system. By their dependence on an
extra-legal order of values they negate formal rationality, give an im
mense amount of discretionary power to the judge, and eliminate the
line of division between judiciary and administration so that adminis
trative decisions—e.g., political decisions—take on the form of decisions
of the ordinary civil courts. Before the war of 19 14 -18 the “ free law”
school had conducted an energetic but hopeless battle against legal
positivism.34 According to this school, law is not exclusively contained
in statutes and the legal system is not closed and free of gaps. The fill
ing of these gaps, then, must be accomplished through legal norms, for
the decision of the judge must be a legal one. And the norms must have
a general character because the administration of law must follow the
principle of legal equality. These norms are to be created by the judge,
who has therefore not only the task of applying law but also that of
creating it. This free-law theory of legal sources is usually connected
with a new policy in the application of law. This postulate is most
clearly stated in the famous pamphlet of Hermann Kantorowicz (Der
Kampt um die Rechtswissenschaft, Heidelberg 1906.) and in the
numerous publications of Ernst Fuchs. It demands that the freedom
which must be conceded to the judge with regard to legal provisions
must be as vast as possible so that the free discretionary power of the
judge may be elevated to the rank of the basic principle of the applica
tion of law. These two aspects of the “ free law” school, the theoretical
and the political one, must be strictly distinguished. To the extent that
the “ free law” school demands a new theory of the application of law,
it demands the substitution of formal-rational law by “ general princi
ples.” Kantorowicz, the founder of this school in Germany, in his later
writings focused his attention more on the theoretical problems of the
school. His disciples, however, who were less qualified in theoretical
matters, dealt rather with its policy for the application of law and
insisted, as in the case of Ernst Fuchs, that the German civil code
contained only one good passage, namely, there where it ceases its
abstract treatment of cases and erects a signpost with the inscription:
“ Entrance to the free sea of legal needs.” This passage is Section 242,
and for Fuchs it is the Archimedian point permitting the old legal
system to be transformed. It was this practical aspect of the doctrine
of free law which became dominant.
Before 1918 the “ free law” school demanded discretionary power for
the judge in order to infuse progressive ideas into a reactionary legal
system. But already in 19 11 Max Weber warned: “ It is moreover not
at all certain that the classes which today enjoy only negative privileges,
($6) The Change in the Function of Law in Modern Society
particularly the working class, can expect the gains from an informal
administration of law that the jurists assume will flow from it.” 35
In order to point out the function of “ general principles” it is neces
sary to examine the fields of law where “ general principles” are invoked
and the functions they fulfil there. To begin with, it may be stated that
“ general principles” are always invoked when the state is confronted by
powerful private groups. Whenever parties which do not have the same
rights engage in the exchange of goods and where one powerful party
faces other less powerful private parties or the state, rational law ceases
to obtain and “ general principles” are resorted to. The decision of the
judge then takes the form of a political or of an administrative order
by which antagonistic interests are adjusted. This political order em
ploys, however, the form of a court decision. It is interesting to investi
gate the utilization of “ general principles” in the field of labor law
which regulates the legal relations between employees and employers.
The power of private groups is most clearly perceivable in the field of
labor relations. According to German law, the legal admissibility of
labor conflict was determined by the standard which is provided for in
Section 826, B G B . This law provides that he who causes damage to
someone else in a way which violates “ good morals” is liable to the
payment of indemnities. W hat violates “ good morals” can never be
decided in a universally binding way. The supreme court for many
decades had employed the formula that those actions are contrary to
“ good morals” which contradict the sense of equity and justice of the
whole people. This, of course, is a purely tautological definition which
adds nothing to what the law has already expressed. A binding standard
as to the legality of a strike is not attainable on this basis. An employer,
at bottom, sees every strike as a disturbance of the sacred order, whereas
an employee will regard no strike as a violation of “ good morals.” Every
“ concrete” formulation which the Reichsgericht has enunciated on this
question is nothing but a reiteration of the tautological definition. Or,
to discuss another difficult problem of labor law: if a worker accepts
a lower wage than the contracted one, has he renounced the difference
between the contracted wage rate and the wage actually paid? The
supreme court always decided this question on the basis of Section 242,
B G B , which provides that the debtor has to fulfil his obligation with
regard to good faith (Treu und Glauben). The federal labor court
consequently refused to decide unambiguously either way. It preferred
to decide each case on the basis of the concrete situation, to take into
account all details which might have been relevant, above all, the
question of whether the worker, when he accepted the lower wage rate,
had been subjected to “ economic pressure/' Another central question
of labor law was the question whether a worker who is willing to work
loses his claim for pay when the employer cannot put him to use for
some such reason as technical disruptions, fluctuations in the market,
or such social disturbances as a strike in his own or in another’s factory.
This question is, as such, clearly dealt with by Section 615, B G B , which
provides that the worker in such cases may claim his wages, the legis
lators having intended to fasten the risks on the enterpreneur. Both
supreme court and federal labor court declined, however, to apply the
unambiguous norm of Section 615, basing their decision solely upon
Section 242, B G B . In this case, too, the specific individual circum
stances are to be taken into account in each case. Following this de
cision, the federal labor court developed a number of principles which
were of extraordinary juridical and political significance. It declared the
Factory Council Law had created a “ working and factory community”
between worker and enterpreneur and that, consequently, the worker
is to share in the fate of the enterprise. If the enterprise is shaken in
its foundations by some disturbance, the worker has to bear the whole
or part of the risk. There is another principle which was developed on
this occasion and which is of far-reaching importance. If a plant is
slowed down or shut by a strike in another plant or by a strike of
certain workers in the same plant, the claim for payment of wages on
the part of workers who are prepared and willing to work is to be denied
because of the bond of solidarity among all workers: The responsibility
for any strike, therefore, must be attributed to every individual worker
who is not working because of it. These are only a few examples from
the very important field of labor law.
The rediscovery of “ general principles” serves to destroy a system of
positive law which had incorporated many important social reforms;
it destroys the rationality of law. The structural changes within the
economic system led to important changes in the functions of “ general
principles.” Having formerly been stepchildren of law, they now; be
come its darlings. Section 1 of the law against unfair competition pro
hibits the use of unfair methods of competition by merchants. This
prohibition has definite and specific functions in a competitive econ
omy. By prohibiting certain forms of advertising, the announcement of
irregular clearance sales, etc., it secures equal opportunities for the
competitors in a free market; this “ general principle” is, therefore, an
important element in a competitive economy. This is, however, modi
fied in the instant at which a competitive economy is replaced by a
monopolistic economy. This general principle ceases at this moment to
be an instrument for the preservation of equal opportunities in a free
market and becomes a means for establishing monopolistic control
over the market. This functional change has an important bearing on
the price-fixing of trade-marked articles. If the state sanctions the price-
fixing among manufacturers of trade-marked commodities, and, more
over, threatens wholesalers and retailers who do not adhere to these
price schedules with punishment, then the private price-fixing of the
monopoly assumes a public character. Hence, the application of the
“ general principle” becomes a sovereign act of the state, which orders
the consumers, who are dependent on the monopoly, to recognize and
to put up with the price rules of the private monopolies.
The foregoing examples are intended to illustrate the proposition
that “ general principles” occupy a central role when competition gives
way to monopoly. “ General principles” support the power-position of
the monopolies. However, this thesis must be qualified in one direction.
From 19 19 to 1931 “ general principles” in labor law served to effect a
compromise between enterprisers and workers. A precise analysis of all
its decisions shows that during this period the federal labor court used
“ general principles” to effect a compromise between the antagonistic
interests of capital and labor. At that time the constitutional idea of
parity among the various groups in German society still had the charac
ter of political reality. From 19 31 onward, when the political influence
of labor parties and labor unions was waning, the idea of parity became
nothing but pure ideology and “ general principles” again became a
means for giving sanction to the interests of capital.
The conclusion is justified, therefore, that in a monopolistic econ
omy “ general principles” operate in the interest of the monopolists.
The irrational norm is calculable enough for the monopolist since his
position is so powerful that he is able to manage without the formal
rationality of the law. He can manage not only without rational law;
frequently the latter operates even as an impediment to the full de
velopment or, if desirable for him, to a restriction of production facili
ties. For rational law, as has been pointed out, has not only the func
tion of rendering the process of economic exchange calculable, but it
serves at the same time to protect the weaker partner. The monopo
list can do without the assistance of law courts. His power is a sufficient
substitute for the judicial action of the state. Even when utilizing the
form of the contract, his economic power enables him to impose upon
consumers and workers all those rules which he deems indispensable
and which the other parties are forced to accept if they want to con
tinue to exist. The contracts of the monopolists burden the consumer
with all imaginable risks, while the consumer himself has to fulfil all
the obligations required by the law. The monopolist can force him to
comply without appealing to the courts. Moreover, the monopolist
tries to abolish the supplementary guaranties of private property in
the means of production—namely, freedom of contract and enterprise
—and to have the formal rationality of the law completely terminated.
Freedom of contract comprehends the right of the outsider to remain
out of a cartel; the right of a cartel member to retire from the cartel
under certain contractual conditions; and, finally, the right of the em
ployee to form unions. Freedom of enterprise permits any capitalist
to establish competitive enterprises and to compete with the monopo
lies. Hence in the eyes of the monopolist these supplementary guaran
ties lose their value. They are consequently restricted or even com
pletely abolished. The direct commands of the sovereign state, the
administrative acts which directly protect the interests of the monopo
list and restrict or abolish the old guaranties, now assume the function
of a new auxiliary institution. The apparatus of the authoritarian state
realizes the juridical demands of the monopolists.
VII
The significance of “ general principles’' becomes even clearer in the
authoritarian state because all restraints are abolished which parlia
mentary democracy, even when functioning badly, had erected against
the unlimited execution of the requirements of monopolies. The func
tion of “ general principles” is even extended. Thanks to their ambigu
ity, they served, in the period of transition, to bring pre-Natio,nal
Socialist positive law into harmony with the demands of the dominant
group, and formally with the commands of the Leader, to the extent
that it had been in contradiction with these. Despite certain differ
ences of opinion, National Socialism postulates that the judge is abso
lutely bound by the law. But the “ general principles’' enable decisions
to be made in accordance with the dominant political opinions even
where positive law contradicts them. For, in applying “ general princi
ples” the judge must not have resort to his free discretion, since “ the
principles of National Socialism are the direct and exclusive authorities
in the application and use of the ‘general principles’ by the judge, the
lawyer, and the jurist.” 36 Thus, the “ general principle” is a means for
realizing the political command of the Leader against a contradictory
positive law. Furthermore, National Socialist literature is entirely
unanimous in holding that the law is nothing but the command of the
Leader for it is only due to the will of the Leader that “ pre-revolu
tionary” law is valid. “ All the political power of the German people is
embodied in the Leader___ All law emanates from him.” The “ Leader
of the ethnic group” is characterized by his attachment to the law of
life of the ethnic community which he expresses by laws, decrees, etc.
It is this direct “ administration” of law which appears “ as a singular
monstrosity to all those whose mode of thinking is still under the
influence of the nineteenth century. To them ‘law’ can only be what
is provided for by statutes, and they call law only that which Parlia
ment as a so-called ‘popular representation,’ according to orderly pro
ceedings, has decided on as law. Above all, it is inconceivable to them
that even the highest judicial authority of the ‘ethnic community’
is embodied in the Leader. They established their bourgeois Rechts-
staat under the auspices of the separation of powers and regarded the
‘independence of the judge’ in the face of the state as one of the most
essential guaranties of their individualistic freedom. Yet history has
definitely decided in favor of us Germans and against those disinte
grating liberalistic principles. Today we know that the Leader protects
the law and that he, in a case of emergency, will immediately act in an
executive capacity. The destiny of the whole community rests on his
shoulders.” 37 Numerous non-general laws having the character of privi
leges have been decreed. The principle that laws may not have retro
active force has been discarded. Even the fundamental principle of the
Rechtsstaat, the principle of equality before the law, has ceased to be
a rule of the National Socialist theory of law which, claiming to derive
its theory from Hegel, seeks to base itself upon the “ concrete person
ality” 38 and forgets that Hegel, although recognizing the purely nega
tive nature of the principle of formal equality, was not in favor of dis
carding it. The independence of the judge has also been changed. Even
if one disregards all extralegal interferences with the judicature, the
repudiation of the general character of law reduces the status of the
judge to that of a policeman. If law and the Leader’s will are identical
and if the Leader can have political foes killed without legal trial and
this action is then celebrated as the highest realization of law,89 then
one can no longer speak of law in a specific sense. Law in this case is
nothing but a technical instrument for the execution of certain politi
cal objectives; it is nothing but the command of the ruler. The legal
theory of the authoritarian state is accordingly decisionism and law is
nothing but an arcanum dommatioms, i.e., a means serving the stabili
zation of power.
This, however, is not the juristic ideology of the authoritarian state.
This is rather represented by “ institutionalism’' or, as Carl Schmitt
calls it, the “ theory of concrete orders and communities."40 Institu
tionalism is distinguished from decisionism as well as from normativist
positivism. W e have already characterized the main tenets of legal
positivism as including the proposition that law can be found only in
statutes, that the legal system is free of logical contradictions and is con
sequently a completely coherent system of general norms, and that the
judge has only to apply this system of norms so that, in spite of the
fact that the application is effected by human beings, the norm prevails
in all its purity. The principal concepts of this theory are (a) the legal
person, which comprises as well the physical as the juridical person; (b)
the subjective private rights, which express personal freedom based
upon objective law (and the highest form of which is the right of
private property), and (c) the contract, to which all human relations
must be reduced, including the state and the club, marriage and sales
agreement, church and labor union. According to the positivist theory,
the state, too, was a legal person. The bearer of sovereignty was not so
cial groups but the Staatsperson itself which acted through agencies.
The individual possessed subjective public rights vis-^-vis the state.
The legal person is the economic mask of the property relationship.
As a mask it covers the true face and obscures the fact that private
property is not only a subjective right but is, at the same time, the basis
of “ master-slave relationships." The contract, being the auxiliary guar
anty of private property, is a contract between free and equal legal per
sons. But this freedom and equality exists only in the legal sphere. The
legal equality of the contractual partners hides their economic in
equality. The labor contract in particular is a contract between the
legally equal worker and entrepreneur. Its form does not reveal the fact
that in actuality the entrepreneur is more powerful than the worker.
The Staatsperson alone is supposed to be the bearer of sovereignty, and
the positivist theory of the state refuses, therefore, to speak of the sov
ereignty of an agency or an organ. This theory obscures the domination
of some men over other men.
Institutionalism proclaims itself as a progressive and “ debunking”
theory because it attacks the concept of the person and replaces it by
the concept of the institution which does not hide differentiations as
the liberal concept of the legal person does. Thus the two concepts of
the Staatsperson and of sovereignty are eliminated.41 The state be
comes an institution like a parallelogram of forces; it becomes a com
munity which rests organically upon communities of a lower order.
The concept of sovereignty becomes superfluous because the power
which is exercised by this state has ceased to be an external power. It
is rather the power of the organized community itself. This power is
supposed, moreover, to be subsumed under eternal natural law or un
der the “ eternal law of life of the ethnic group.”
Even more rigorous are the changes which the theory of property
undergoes. To positivism the plant is the technical unit in which the
owner produces and the enterprise is the economic unit through which
he executes his business policy. Institutionalism transforms the plant
into a “ social work and factory community” in which the worker is not
only an instrument of the entrepreneur but also as “ a living member
of the working community of entrepreneurs and workers.” The law re
garding organization of national labor of January 20, 1934, legalized
the foregoing definition of the federal labor court, the consequence be
ing that the contractual relationship between worker and employer is
replaced by the obligation of faithfulness which is derived from this
community. “ Not the materialistic Roman locatio conductio operarum
[sale of service] but the German legal form of a faith-contract [Treue-
vertrag] determines the relation between employer and employee. It
is not the reciprocal obligations of exchange but common work, work
in the community and a common task and aim, which are decisive.” 42
This formulation, which does not consider the labor contract as a con
tract but as an organizational relationship or as a personal legal bond,
was first put forth by Gierke,43 who asserted that the labor contract is
nothing but the continuance of the Germanic “ faith-contract” (Treue-
vertrag) between lord and vassal. Hugo Sinzheimer transposed this
theory into the German labor law. The business enterprise, then, be
comes a social organism and the corporation is transformed from a
union of legal persons with property into an institution. Property,
briefly speaking, ceases to be the subjective right of a legal person and
becomes an “ institution,” i.e., a reified, objectified, and de-in dividual-
ized social relationship. The contract is not only pushed aside in prac
tice, as we have seen, but it also ceases to play a role in legal ideology.
Rights and duties are no longer connected with the will of legally
equal persons but rather with objective facts. W hat is decisive, now, is
the status which man possesses in society.
The chief representative of institutionalism, Georges Renard,44
summarized the institutionalist demands and opposed them to juri
dical positivism which he calls Jacobinism. The core of institutional
ism is the elimination of the legal person from the legal system, the
separation of the institution from the legal person, and the absolutiza-
tion of the institution. The concept of the legal person is supplanted
by the “ concrete legal status of the member of the ethnic com
munity” 45 since the retention of the old liberal concepts would destroy
the “ ethnic community.” 46 According to Renard, the institution is an
organism or a legal structure which serves the commonweal. It is not
a simple relationship; it is “ existential.” It is a unit, “a whole” in which
the single individuals are integrated. “ The institutional relationship
is an internalization, a consortium, invicem membra.” Thus the enter
prise is divorced from the entrepreneur, the corporation from chairman
and board. W ith the subjective public right, the person and sovereignty
of the state disappear.47
How is this development to be explained? The legal principles of
positivism certainly had a veiling function. The concept of the legal
person doubtless is a social mask. But this mask only disguises; it does
not eliminate its bearer, which can still be sensed behind the mask. In
the period of competition it was not necessary that the proprietor
should disappear since, as an individual, he did not exercise much eco
nomic and social power; for it was not the single individual but the
totality of those individuals, i.e., the system which exercised power
over man. Under monopolistic capitalism, however, this power is con
centrated in the hands of a few. If the mask were removed, the true
situation would be revealed. In a monopolistic economy the power
which is exercised by a few can be easily perceived. Institutionalism, as
the legal theory of monopolism, eliminates this mask from the theory
of law, but it also eliminates its bearer, the proprietor himself. One
does not speak any more of proprietors but of plants and entrepreneurs.
One discards the concept of the “ person of the state [Staatsperson].”
This concept, in the positivist theory of the state, disguised the fact
that, in reality, a social group exercised the power which was attributed
to the “ person of the state.” However, if political power is as strongly
concentrated as is the case in the authoritarian state, then it is desirable
that the concepts of the “ person of the state” and of sovereignty be
abolished and replaced by the concept of the community led by the
Leader. Henceforth the state is called a “ formation” or “ configuration”
(Gestalt) and is called “ the political configuration of the German
people.” 48 To the extent that commands, and not contractual agree
ments, become decisive, the legal theory of positivism disintegrates
and is supplanted by institutionalism. “ If, during the last centuries, it
was necessary for the continuation of economic life that promises were
kept without continuous intervention of power, in the meantime this
necessity has become less important due to the progressive accumula
tion of capital. The ruling class has ceased to consist of numerous
persons who conclude contracts, now it is composed of large powerful
groups controlled by a few persons, which compete with one another in
the world-market. They have transformed vast areas in Europe into
gigantic labor camps characterized by a rigid discipline. The more com
petition in the world-market turns into a sheer struggle for power, the
more rigidly organized will these labor camps become both internally
and externally. The economic basis of the significance of promises be
comes less important from day to day, because, to an increasing extent,
economic life is characterized not by the contract but by command and
obedience.” 49
Entirely disparate political theories have made use of institutional
ism, including reformist theory, especially that of the trade-unions, as
well as the theory of the authoritarian state. This fact is indicative of
the confusion which at present is characteristic of legal thought. It is
indeed true that the theory of institutionalism seems to be more cor
rect empirically than the theory of juridical positivism. That the plant,
the enterprise, the corporation, and the monopoly are declared to be
social institutions expresses the fact that property is no longer the pri
vate affair of the individual but has become a social institution in a
specific sense. Institutions are, of course, more tangible than norms.
Hence in Germany, France, and England this theory was adopted by
progressive labor-unionism or collectivism. But actually this realism is
only apparent because the institution is divorced from the context of
power relationships without which it is unintelligible. Institutionalism
tears institutions from their social context. Just because the concept
of the institution has such a vague character, which can be expressed
in such high-sounding sentences, just because it was divorced from
social reality, institutionalism in Germany became the theory of social
reform on the part of the trade-unions. Particularly the theories of
labor law of the various trade-unions were based upon institutionalistic
concepts. In England, especially under the influence of Gierke’s theory
of the association (Genossenschaft), conservatism as well as Fabianism
employed the institutionalist concepts in order to reform the relation
ship between state and society. In France institutionalism is substan
tially neo-thomistic and has been extraordinarily strengthened by the
papal encyclical “ Quadragesimo anno.”
The legal theory of National Socialist Germany avoids the word
“ institutionalism” and, “ in order to distinguish itself from neo-thom-
ism,” prefers to call itself “ the juristic-theory of order” or “ the theory
of community.” It is supposed to be “ configurational or structural
thinking.” National Socialism experiences this “ configuration of
things” in the activities of the monopolies. The close kinship between
institutionalism and monopolistic capitalism was implicitly admitted
by Carl Schmitt when he characterized Gottl-Ottlilienfeld’s “ theory of
structures” as the truly appropriate German economic theory. Gottl-
Ottlilienfeld, a leading German economist, eliminates the economi
cally active individual entirely from his economic theory and replaces
him by social structures which are either “ elementary” or “ instru
mental” structures.
Hence, juridical positivism is eliminated from the legal theoty of
the authoritarian state; yet it is not replaced only by institutionalism.
The decisionist elements are preserved and are enormously strength
ened: first, by the elimination of the rational concept of law, and
second, by the exclusive rule of the political concept of law. The
reason is that the institutionalist theory is never able to answer the
question of which institutions, in a given situation, are “ elementary”
and which are merely “ instrumental structures” ; neither is it able to
state which acts of intervention and which type of regulation of insti-
tions are “ appropriate to the situation.” Nor is it able to decide of it
self what the “ concrete status of the group-member” is to be. This
decision must be made by the apparatus of the authoritarian state
which utilizes the command of the Leader as a technical means.
If the general law is the fundamental form of law and if law is not
only voluntas but also ratio, then one must state that the law of the
authoritarian state has no legal character. Law as a phenomenon dis
tinct from the political command of the sovereign is possible only if it
manifests itself as general law. In a society which cannot dispense with
power as a principle, complete generality of law is impossible. The
limited, formal, and negative generality of law under liberalism not
only makes possible capitalistic calculability but also guarantees a
minimum of liberty, since formal liberty has two aspects and makes
available at least legal chances to the weak. For this reason there de
velops a conflict between the law and the liberties based thereon, on
the one side, and the requirements of a monopolistic economy, on the
other side. Under monopolistic capitalism private property in the
means of production as the characteristic institution of the entire
bourgeois epoch, is preserved, but general law and contract disappear
and are replaced by individual measures on the part of the sovereign.
Notes
1. Locke, Second Treatise on Civil G ov., chap, xii, $ 14 7.
2. Hobbes, Leviathan (Nlolesworth ed.), ch. xv, p. 14 5.
3. Ibid., p .2 0 4 .
4. Spinoza, Tractatus politicus, chap, iv, par. 5.
5. Ibid., chap, ii, J 4.
6. Social Contract (Everyman’s Library), pp. 35 ff.
7 . Hegel, Philosophy of Right, $ 2 1 1 .
8. Hegel, op. cit., $ 7 1 .
9. Kant, The Philosophy of Law, trans. W . Hastie (Edinburgh, 1887), p. 5 1.
10 . Bentham, W orks (Bowing ed.), V ol. I l l : General View of a Complete Code
of Laws, pp. 2 0 9 -10 .
1 1 . “ One individual must never prefer himself so much even to any other indi
vidual as to hurt or injure that other in order to benefit himself though the benefit
of the one should be much greater than the hurt or injury of the other” (Adam
The Change in the Function of Law in Modern Society (6j)
Smith, The Theory of M oral Sentiments Boston, 1 8 1 7 , V ol. I, Part III, chap,
iii, p. 564). Further: “ In the race for wealth and honors and preferment, each may
run as hard as he can and strain every nerve and muscle in order to outstrip all his
competitors, but if he should jostle or throw down any of them, the indulgence of
the spectator is entirely at an end" (ibid., p. Op. cit., V o l. I, Part II, Sect. II, Chap.
12 . “ La liberty consiste & ne dependre que des lois.”

13. F . J. Stahl, Rechts- und Staatslehre (3d ed.), II, 13 7 -4 6 .
14 . Gneist, Der Rechtsstaat, 2d ed. (18 72), p. 333.
15 . Geschichte der Lieratur der Staatswissenschaften (188 5), V ol. I, pp. 296 seq.
16 . Der Rechtsstaat (1864), pp. 1 - 2 .
17 . Article: “ Staatsverfassung" in Rotteck-W elcker, Staatslexikon (1843) V o l.
1S-
18 . On the German theory, the best discussion in Carr6 de Malberg, Contri
bution h la thtorie generate de I’Etat, V ol. I (1920).
19 . See J. W . Hedemann, Die Flucht in die Generalklauseln (19 3 3 ).
20. Quoted in E . Forsthoff, “ Zur Rechtsfindungslehre im 19 Jahrhundert" in
Z eitschrift fur die Gesamte Staatswissenschaft, V ol. 96 (19 35), p. 63.
2 1. Recht und Rechtswissenschaft (1854 ) p. 23.
22. /urisprudenz und Rechtsphilosophie (1892) p. 1 3 1 .
23. Der Dolchstossprozess in Miinchen (19 25 ), p. 224.
24. H . J. Laski, “ T he Pluralistic State," in Foundations of Sovereignty (19 3 1) ,
pp. 232 seq.
25. O. Kirchheimer, W eim ar und was Dann? (1930).
26. This is based upon an analysis of the following: Hedemann, op. cit.; H .
Heller, in Veroeffentlichungen der Vereinigung der Deutschen Staatsrcchtslehrer,
No. 4 (1928); H. Isay, Rechtsnorm und Entscheidung (1929 ); C . Schmitt, Ver-
fassungslehre (1928); H. Triepel, Goldbilanzenverordnung und Vorzugsaktien
(1924); F . Dessauer, Recht, Richtertum und Ministerialbuerokratie (1928 ); O.
Kirchheimer, Grenzen der Enteignung (1930 ).
27. Emile, Book V .
28. C . E . Vaughan (ed.), The Pohtical Writings of Rousseau (Cambridge,
»9 i 5 )> H. 337 -
29. Ib id .,p . 355.
30. Official collection, V ol. 102, p. 1 6 1 .
3 1. V ol. 10 2, p. 1 6 1 , V ol. 1 1 1 , p. 320.
V ol. 10 3 , p. 200, V ol. 10 7, p. 370.
V ol. 109, p. 3 10 , V ol. 1 1 1 , p. 329.
Otto Kirchheimer, Grenzen der Enteignung (Berlin, 1930 ).
V ol. m , p . 329.
32. Jurist. Wochenschrift 1924, p. 90.
33. Jurist. Wochenschrift 1924 , p. 245.
34. Eugen Ehrlich, Freie RechtsGndung, 19 0 3; Grundlegung der Soziologie des
Rechtes (Miinchen und Leipzig, 19 13 ) .
35. Wirtschaft und Gesellschaft (Tubingen, 1922), II, 5 1 1 .
36. Carl Schmitt, Fiinf Leitsatze fur die Rechtspraxis (Berlin, 19 33).
37. Hans Frank, in Zeitschrift der Akademie des deutschen Rechts (4. Jahrgang,
1936), p. 290.
38. Karl Larenz, Rechtsperson und subjektives Recht (Berlin, 19 35) P- 9 -
39. Carl Schmitt, “ Der Fiihrer schiitzt das R ech t," in Deutsche Juristen-
Zeitung, 1934 , p. 945.
40. Carl Schmitt, Vbe r die drei Arten des Rechtswissenschaftlichen Den kens
(Hamburg, 1934).
4 1. Rcinh. Iloh n , Die W andlung im staatsiechtlichen Denken (Hamburg, 1934)
Leon Duguit, Droit constitutional (Paris, 1907).
42. R . Dietz, Gesetz zur Ordnung der nationalen Arbeit, 4th ed. (Miinchen,
19 36).
43. “ Die W urzeln des Dienstvertrages” in Festschrift fur Heinrich Brunner
(Berlin, 19 14 ) pp. 37 ff.
44. L ’Institution, Fondement d’une Renovation de l’Ordre Social (Paris, 19 3 1) .
45. K. Larenz, Rechtsperson un d subjektives Recht, op. cit., p. 225.
46. E . R . Huber, “ Die Rechtsstellung der Volksgenossen” in Zeitschrift fur die
gesamte Staatswissenschaft, vol. 96 (1936) p. 448.
47. R . Hohn, Staat und Rechtsgemeinschaft; T h . Maunz, “ Das Ende des sub-
jektiven offentlichen Rechts” in Zeitschrift fur die gesamte Staatswissenschaft, V ol.
95 and 96 (19 35) p. 656 and p. 7 1 .
48. E . R . Huber “ Die deutsche Staatswissenschaft" in Zeitschrift fur die
gesamte Staatswissenschaft, vol. 93 (1934 ) P- 2^*
49. M ax Horkheimer, “ Bemerhungen zur philosophischen Anthropologie,”
Zeitschrift fiir Sozialforschung, IV (19 3 5), 14.
[c h a p t e r 3]
([ <[
TYPES OF N ATU RAL L A W *
T oday we are faced with a revival of Natural Law. At the turn of this
century, such a renaissance would have been inconceivable. Natural
Law was dead. Karl Bergbohm’s1 witchhunt against Natural Law in
all its forms, and in all juridical disciplines, impressed the stamp of
ridicule upon all its adherents. When, in 1904, George L. Scherger
published The Evolution of Modern Liberty,2 he could rightly sum up
the attitude of his period in the following way: “ The theory of Natural
Law is an exploded theory, no longer accepted by any scholar of re
pute.” Legal positivism, with its thesis that law is nothing but the
sovereign's will, had exterminated all attempts to measure the system
of positive law on some normative standard.
But today it takes considerable courage to deny the scientific validity
of Natural Law. It has again permeated political and legal thought,
and forms almost a compulsory introduction to many political pam
phlets. It takes the form of a revival of Thomistic Natural Law or of the
rationalistic doctrines. Even Fascist and National Socialist theories
are beginning to use the propagandist potentialities of the postulates
of Natural Law, often merely for foreign consumption. Equality, lib
erty, and justice still taste sweetly to many. It is thus good policy to
cover reactionary, regressive, and anti-rational politics with the cloak
of a more than 2000-year-old tradition.
If we wish to preserve the heritage of Natural Law, we must restate
it. Such an undertaking can only be successful if, by developing the
historic types of Natural Law, we find common traits which can be
spoken of as progressive elements of modern society.
* Reprinted from Studies in Philosophy and Social Science, ed. Institute of
Social Research, New York & Paris 1940, pp. 3 3 8 -3 6 1.
(69)
(7°) Types of Natural Law
Natural Law doctrines begin by asserting the existence of a state of

nature and thus of a specific nature of man. Man is either good or bad,
a lamb or a wolf, social or isolated, peaceful or warlike, religious or
pagan. From this state of nature the character of civil society is de
duced. It is either liberal or absolutist, democratic or aristocratic, re
publican or monarchic, socialistic or based on private property. The
relation between law and the State is equally derived from the defined
state of nature. The State may swallow up the law, or the law (the
natural rights) may annihilate the State: The State may stand above,
or below, or side by side with the law.
It is obvious that any such doctrine of Natural Law is philosophically
deficient. It is exposed to the reproach of arbitrariness. Hume, in his
Treatise of Human Nature, had prepared the first attack on the essence
of Natural Law. There can be no rational principles of right and justice
which are necessary and inescapable. They are conventions which are
valid merely because man follows them. They cannot be shown to be
necessary since it is always possible to conceive the opposite.3 From
the general philosophical position of Hume it follows that his attack
upon Natural Law is not restricted to this branch of moral philosophy
but is rather contained in his denial of the universality and necessity
of reason, and upon his insistence that general ideas are merely derived
from the particular, merely represent the particular, and can never pro
vide universal rules and principles.4 It is in fact in line with Helvetius’
rejection of Natural Law, arising from the same mistrust of universal
and innate ideas.
Hegel’s criticism is far more decisive, for, from the very basis of his
philosophical idealism, he disclosed the dogmatic and arbitrary charac
ter of the traditional Natural Law doctrines.5 Hegel condemns them
because they subordinate the State to the antagonistic interests of an
individualistic society. His criticism applies equally to both trends of
Natural Law: the empirical and the critical. For the former he analyzes
Rousseau and Hobbes; for the latter, Kant and Fichte. Hegel re
proaches the empirical theory with isolating one side of human nature
(p. 328). It eliminates “ specific customs, history, education,” and is
left with “ man” in “ the naked state of nature” (p. 339), a mere abstract
Types of Natural Law ( ji)
phenomenon. Hegel continues that such a procedure cannot provide
a criterion enabling us to determine the boundary between chance and
necessity, “ what could thus remain in the chaos of the state of nature
or in the abstractness of man and what must be eliminated.” “ The
guiding principle of the a priori is the a posteriori” (p. 339). The em
pirical doctrines thus destroy the unity of the whole of human relation
ships; they arbitrarily elevate one aspect of human nature, one impulse,
one drive, to the rank of the absolute (p. 342), and deduce from it a
whole set of postulates for the ordering of human society. Nevertheless
the empirical doctrines are rated more highly than the critical ones
because they at least have recourse to experience (pp. 344-345). More
over, Kant's doctrine of practical reason appears to Hegel not only
tautological but immoral. Whether it is possible for a definite purpose
to become the basis of a moral law, can only be answered if it has
already been decided whether or not this purpose is worthy of being
realized. This decision will vary according to historical circumstances.
Kant illustrates his universal norm from the example of private prop
erty which, according to him, is accepted by everyone. But according
to Hegel, everyone is at liberty to deny private property and to arrive
at a different moral hw. The Kantian principle of universality becomes
an immoral principle if an immoral wish is powerful enough to be
regarded as sufficiently important. It could then be “ elevated to the
rank of a principle and there is absolutely nothing that cannot in this
way be made into an ethical law."
Hegel's criticism is not very different from Rousseau’s famous state
ment in his Discours sur I'lnegalitd:6 “ He (the Natural Law theorist)
begins by casting about for the rules which, in their own interest, it
would be well for men to agree upon; and then, without any further
proof than the supposed advantage thus resulting, he proceeds to
dignify this body of rules by the name of Natural Law. All the philoso
phers of his school have followed the same method. The result is that
all the definitions of these learned men, in standing contradiction with
each other, agree in this conclusion only: that it is impossible to under
stand, impossible therefore to obey, the law of nature without being
a deep reasoner and a very great metaphysician. And that is only an
other way of saying that, for the establishment of society, man must
have made use of the wisdom which is, in fact, only gradually acquired
(j 2 ) Types of Natural Law
by a small minority of men and that with the utmost difficulty, in the
bosom of society itself.”
But in every Natural Law doctrine there is one element which I Iegely
incorporating it in his Philosophy of Right, recognizes as progressive,
as the emanation of reason possessing true universality. W e must,
therefore, be careful not to confuse the many criticisms of Natural
Law. If Hume rejects it because there can be no rational justice, if
George Sorel7 denounces it because of its arbitrariness, or if counter-
revolutionists attack it because it contains revolutionary elements, they
attack it because they deny the possibility of a rational theory of justice.
That is quite different from a theory of law which (like Hegel’s) asserts
the possibility of constructing a rational theory of right and justice but
which merely denies that the historic forms of Natural Law have ful
filled this possibility.
Yet it is just the varying historic types of Natural Law, far more than
an epistomological discussion which reveal the content of truth con
tained in them. For it is the truth of the Natural Law doctrines with
which we are primarily concerned. Our discussion can thus not be
merely a sociological one, putting into the forefront the connection
between thought and social condition, between the genesis of a doc
trine and its meaning. Such analysis will undoubtedly help us to reveal
the amount of truth contained in Natural Law doctrines. But in itself
it cannot furnish the criterion. In searching for the criterion we must
avoid the pitfalls of both dogmatism and relativism. The maxims of
right cannot be deduced from mere formal concepts which are in turn
wholly arbitrary and dogmatic. That is a mistake which Kantian legal
philosophy shares with the Natural Law doctrine. On the other hand,
we must not be driven to the extreme of positivism, pragmatism, and
perhaps still further to a nihilistic relativism. The truth of a doctrine
does not depend solely upon its utility. Many propositions of Natural
Law are progressive, though they may appear futile in certain historical
situations. Others may serve in one historical stage and may be worth
less in another one. The truth of a doctrine will depend upon the ex
tent to which it embodies concrete liberty and human dignity, upon
its ability to provide for the fullest development of all human potenti
alities. It is thus in the historic development and the concrete setting
of the Natural Law doctrines that their truth must be determined.
Types of Natural Law (73)
II
W hat is the basis of a Natural Law theory?8 The answer must neces
sarily be: nature. That means, in the first place, the nature of law.
Every Natural Law doctrine tries to answer such questions as the
character of the law, its validity, the relation between State, law, morals
and so on. If this alone were the task of Natural Law doctrines, they
would be nothing but a philosophy of law, or rather, philosophy of law
would be Natural Law, which is obviously not the case. The solution
of this dilemma can only be that Natural Law tries to solve the philo
sophical problems of law by some specific method, by some special
approach,—that is, by deriving the principles of law from the lawful
ness of nature.
W hat do we mean by nature in this connection? Do we mean the
nature of man, that is, the psychic, internal nature, or do we under
stand by it physical, external nature? Do we mean man himself, or the
objects around him? Can a Natural Law doctrine deduce its proposi
tions from the laws governing physical nature? Apparently only if
there is an intrinsic connection between man and external nature, so
that the laws governing the latter are also valid for the psychic struc
ture of man. If such an intrinsic connection is not claimed and if
the principles of law are nevertheless deduced from external nature,
then we have a mere analogy between human and external nature.
The order of nature becomes then a mere symbol for the order of
society, as in the apologetic writings of the Middle Ages, which justify
the division between rulers and ruled, between sui iuris and juris
alterius, by referring to the hierarchic order of external nature or
even to the structure of a cathedral building.9 If, however, man is a
part of external nature, subject to its laws and determined by the iron
necessity from which external nature cannot escape, then we have—as
in the stoic, to some extent in the Thomistic, and in the pantheistic and
deistic philosophies—specific theories of Natural Law.
It may be assumed that man, outside his socio-political existence,
does not exist or is, at least, not considered as relevant. Man has rights
and duties not as an isolated individual, not prior to civil society, but
only in and through it. Such doctrines are, in consequence, not theories
of Natural Law. That is especially true of Aristotle, for whom there is
neither an antagonism between the individual and the State nor be
(74 ) Types of Natural Law
tween society and the State. The power of the Polis is no external one
confronting individual rights of the citizens. The rights of the citizens
are rather rights of the status activus, expressing the identity between
man and the State of which he is a member. The Solonian legislation
even went so far as to make it the duty of every Athenian to take up
arms in the factional struggles on penalty of losing his citizen rights.10
It is true that, throughout his Ethics, Aristotle contrasts laws with
natural justice, or human with natural justice, or even laws with na
ture.11 But these statements do not give the slightest suggestion that
the individual has rights outside of and even against the Polis. Nor
does the introduction of the concept of equity alter this view. Equity
is, in Aristotle’s definition, a correction of the abstractness of universal
rules. But, in his own words, law and equity are “ not opposed to one
another.” “ They appear to be neither absolutely the same nor generi-
cally different.” 12 The standards of equity in Aristotle’s philosophy of
law are—it seems—not determined solely by the specific characteristics
of the citizens concerned, but derive from the “ nature of things,” from
the concrete configuration of the specific case in which the claim of
the individual may be but one of the determining factors.
It follows from the previous discussion that any legal philosophy
which refuses to consider man as an isolated individual endowed with
specific drives, cravings, instincts (or whatever word we may choose),
or driven by the forces of objective nature, prior to the creation of, or
independent of civil society, cannot be a Natural Law philosophy. It
may have an idea of justice. It may develop the standards of right from
the structure of civil society and its needs. But it cannot be said to
represent a doctrine of Natural Law. Any other definition would make
the term Natural Law even more protean than it actually is within the
so defined limits.
If we limit Natural Law doctrines to those which assume (either as
a fact or as a hypothesis) the existence of an isolated individual prior
to the establishment of civil society, the content and the structure of
the Natural Law theory will obviously be determined by a philosophy
of man. Man may be considered as essentially good, as essentially
wicked, or as neither good nor bad. The first view is held by the more
liberal, the second by the more absolutistic, the third by the purely
democratic theorists.
Accepting the optimistic view of man’s character (e.g., as with
Hooker and Locke), Natural Law must reach the conclusion that no
civil society can deprive man of his original rights. Nor need it do so
for man is essentially good. The pessimistic view (Epicurus, Spinoza,
Hobbes) must be primarily interested in the preservation of order,
peace and some kind of living together under common law without
regard to man’s inborn rights which, owing to man’s essential wicked
ness, could only turn life into a war of all against all. The agnostic view
(Rousseau) believes that only in civil society can man’s original rights
merge with those of his fellow citizens into one collective right. Ac
cording to Rousseau it is not man’s character which is a cause of his
corruption. It is society' which makes man depraved, for in the state of
nature, man is “ ni bon ni mechant.” 13
Ill
It follows from our viewpoint that Natural Law doctrines must
postulate the existence of a system of norms independent of the de
cision of the sovereign power, and even independent of God’s deci
sions. In the words of Leibnitz, “ justice were never an essential prop
erty of the Deity if law and justice would depend on its arbitrariness.
It is thus that justice contains laws of equality and equity which are
founded not less in the nature of things and of the moral ideas than
the principles of geometry and arithmetic. . . . Some were foolish
enough to maintain that God could lawfully condemn an innocent
because the law is also his creation.” 14
How is it possible objectively to derive valid laws from the wills of
the individuals? This is the crucial question with which Natural Law
is concerned. Is it possible to construct universally valid rules, not
arbitrarily imposed from above, but springing from the free consent of
the individual? An affirmative answer can be given only if we assume
that man is endowed with reason. W e shall return to this problem
later. The political form in which this free consent of man can be ex
pressed is the social contract. And it is at this place that Natural Law
doctrines and social contract theories come into contact. W e mean
here only genuine social contract theories and not doctrines of a gov
ernmental contract. W e are concerned only with those theories which
derive the very existence of civil society, and not merely its specific
form of government, from the consent of man. It is fairly evident that
Natural Law and social contract are not identical categories. If a right
(~6) Types of Natural Law
is derived from the nature of man. it cannot be conceived as the mere
creation of the social contract.15 There is, therefore, even a certain
contradiction between Natural Law and social contract. The latter
justifies the use of coercive power, whereas the optimistic Natural Law
doctrines profess to justify original rights against such coercive powers.
No social contract theory necessarily follows from the optimistic Natu
ral Law doctrine. The theory of natural rights may be superimposed
upon nearly ever}- theory of civil society. If thus superimposed, it has a
constitutional function: to limit, to restrict and to suide the activities
of the State by the original rights of life, liberty and property.
Whereas a theory of Natural Law does not necessarily lead to a
social contract doctrine, a social contract theory is logically impossible
without a corresponding view of Natural Law. either explicit or im
plicit. Ever}- social contract reduces the will of the state to the wills of
the individuals and must thus have a definite view of man’s character
prior to the conclusion of the social contract.
If we analyse the relation between Natural Law theories and con
tractual theories we come to the conclusion that although both doc
trines validly establish the normative element they are logically in
capable of developing the coercive element without which law is only
a concept.
If a man is really good in the state of nature, why should he part
with his freedom and form a civil society? If he is a lamb, why must
he transfer his original rights to some common coercive agency? If he
is truly good, his cravings can be harmonized without coercion. The
anarchists are thus indeed the only consistent theorists of the opti
mistic Natural Law doctrines, while neither Locke nor Adam Smith
can possibly develop a consistent theory of the State. If Locke describes
the natural state as one of ’‘peace, goodwill, mutual assistance and
preservation.“ 16 why then is a State necessary? It is because, although
Locke’s treatise is written as an attack on Hobbes, and almost always
with an eye on Hobbes, Locke could not but ultimately accept the
propositions of Hobbes’ theory, namely, that men are sometimes
“ grasping hucksters, quarrelsome tyrants, rebels.” 17 There is hardly
any difference between Hobbes’ construction and the following state
ment by Locke: ‘‘whosoever out of state of nature unite into a com
munity must be understood to give up all the power necessary to the
ends for which the}* unite.” 1* Nor must we be deceived by the ap
Types of Natural Law (yy)
parently deliberate omission of the word sovereignty. Locke's preroga
tive power “ to act according to discretion for the public good, without
the prescription of the law and sometimes even against it" fulfills, for
all practical purposes, the needs of the sovereign power, especially in
the field of foreign policy.
The inability of the pessimistic doctrines to secure the continuous
existence of a coercive authority which is independent of the antago
nisms of the individuals in society is brought out strikingly in the phi
losophies of Hobbes, Spinoza and Kant. At first sight, the differences
between the three philosophies appear to be considerable. Hobbes still
allows the individual important remnants of natural rights.19 Spinoza's
doctrine makes the individual give up his rights in their entirety. No
one retains even the shadow of such rights. Law is merely the com
mand of the sovereign. There is no right to resist. The subject is merely
alterius iuris, the State alone is sui iuris.20 Kant also rejects the right
of resistance21 and constructs the most rigid theory of law yet devised,
although it contains, at the same time, some of the most progressive
elements of modern legal thought. All three philosophers, although
establishing the absolute sovereignty of the State, bow to accomplished
facts, and acknowledge the possibility of refusing obedience. Hobbes22
dissolves the bond between rulers and ruled when the former is no
longer capable of performing his side of the bargain, namely to protect
the subjects, to guarantee peace and order, and to secure their property.
Spinoza23 corrects his political theory by his legal theory. Law is might.
Each one has as much right as he has might. Each group may at any
moment become sui iuris, seize power and demand obedience. Kant,24
in a modest note to his Rechtslehre, admits that after a successful revo
lution the subjects owe obedience to the new powers.
It follows from this short critical examination that every Natural
Law doctrine is self-contradictory. None of the theories is capable of
explaining the validity of a system of norms derived merely from indi
vidual consent. All of them are compelled to admit into their system
a non-normative element, namely power, thus overthrowing their
whole elaborate structure.
It is true that our survey does not cover all forms of Natural Law.
But our criticism applies equally to all known expressions of it. In
some, the inner antagonism is even more apparent. In Bodin's doctrine
(78) Types of Natural Law
the two elements, the normative and the power factors, stand com
pletely unrelated to each other, and it is impossible to claim that
Bodin’s system is logically consistent.25
IV
Only one form of Natural Law theory avoids the pitfalls of both—
anarchy and arbitrary rule—the democratic doctrine given by Marsilius
of Padua and even more so by Rousseau. It may be true that Marsilius
did not develop a genuine democratic theory because he identified the
people with its ‘ pars valentior.” 26 But even taking this limitation into
account, the accomplishment of Marsilius was never surpassed except
by Hobbes and Rousseau. In Marsilius’ system, Natural Law serves for
the establishment of a completely self-sufficient secular state. From
the nominalist position of a dual truth, a rational and revealed one,27
Marsilius succeeds in breaking away from political Augustinism and
scholasticism. Compelled to seek a rational justification of the secular
power, he had to have recourse to a social contract, erecting the State
upon the free consent of the people, even if only a part of it was taken
into consideration. W ith the establishment of the State, Natural Law
disappears. It has merely an advisory character, lacking the “ vis coac-
tiva.” 28 The State becomes a unity. Its power is one and indivisible.
There is but one law governing the State and but one central authority.
So strong is the unity and secularity of the State that Marsilius, antici
pating Hobbes and Spinoza, demands the control by the State of ec
clesiastic education and of the religious cults.29 W e must admit that
Marsilius only develops the beginnings of a consistent theory in which
natural rights are preserved even though they are at the same time sur
rendered to the State. This is attained through the arbitrary restric
tion of the consent of the people to its pars valentior where unity and
harmony can be relatively easily established. Had he extended the
democratic concept to embrace the whole populace, the internal con
tradictions of the theory would at once have become apparent.
The solution was accomplished by Rousseau. W e presuppose a
knowledge of his political theory: the establishment of the general
will from the will of all, the claim that in spite of the surrender of all
individual rights, they are nevertheless preserved in the general will.
This may be taken to mean either a dogmatic and totally unproven as
sertion, or a mere ideology to justify the rule of majorities and of rep
resentative bodies.30 Only if we interpret Rousseau's political theory
as based upon a definite social theory can we understand how a rational
order of human life can really be developed from his principles. There
appear to be two alternative social conditions underlying Rousseau's
political theory. The one, well known, is his preference for small city
states and his abhorrence of large cities.31 The other, little known, are
his postulates with regard to the economic substructure deemed neces
sary for the realization of a rational—that is, natural—order. Rousseau
had a deep insight into the fundamental economic antagonisms pro
duced by private property. In Emile he makes the following remarkable
statement: “ This right (namely property) is inviolable and sacred for
the State so long as it remains private and individual. But directly it is
considered . . . as a right common to all citizens, it is subordinated to
the general will, and the general will can annul it. The sovereign has
no right to touch the possessions either of one individual or of several.
But it has every right to appropriate the possessions of all."32 Property,
in order to remain private and individual, must be equally distributed.
Such equality is not only not dangerous but beneficial.33 If, however,
such equality can no longer be established, then there is but one way
out—communal property. “ Loin de vouloir que I'etat soft pauvre, je
voudrafs au contraire, qu'il eut tout, et chacun n'eut sa part aux biens
communs qu'en proportion de ses services."34 Only if accumulated
property is no longer dangerous is the general will the true representa
tion of the wills of all. The sovereign power then ceases to be sov
ereign, is no longer an external power confronting the subjects. It is
rather society itself which governs and administers itself. “ Car la pro-
pri6te paiticuHire dtant si faible et si dependante, Je Gouvernement n'a
besoin que de peu de force et conduit, pour ainsi dire, les peupies avec
un mouvement de doigt."35 Rousseau's doctrine does not truly achieve
the preservation of the rights of all in the general will, except in con
nection with the specific social theory. Without it, his doctrine is the
ideology of representative democracy, and is thus exposed to the re
proach that the majority does not necessarily represent the truth.
Nevertheless democratic Natural Law does at least provide the formal
framework within which it is possible to harmonize the wills of indi
viduals.
(So) Types of Natural Law
V
Must we, therefore, in spite of its inner consistency, discard the doc
trine of Natural Law? The answer will depend upon the evaluation
of the basic element underlying all the doctrines of Natural Law.
If every doctrine of Natural Law is based upon man as an individual,
either autonomous or subject to the lawfulness of external nature, then
man must be considered as a rational individual. That in turn implies
the recognition of the essential equality of human beings. And this
again leads to the universality of the Natural Law doctrine which is
the central view common to all doctrines. It also follows that no
theory of Natural Law can accept facts as they are and because they
are. Natural Law doctrines are thus fundamentally opposed to tra
ditionalism and historicism. Each human institution is open to critical
reason, none is exempt from it. Finally, Natural Law doctrines cannot
be reconciled with anti-rational doctrines, such as Vitalism, Universal-
ism or the theory of Charismatic Leadership. If Life is an original
datum, irreducible and not open to critical examination; if the Whole
stands categorically before the individual; if obedience is owed because
a leader is endowed with superhuman, God-like qualities; then reason is
excluded. It is true that attempts have been and will be made to recon
cile anti-rational political theories with Natural Law. Such attempts
appear to be meaningless. The protagonists of anti-rationalism36 have
themselves acknowledged the incompatibility of their position with
Natural Law doctrines, whatever form they may take.
For de Maistre and Bonald, Natural Law and social contract theories
represented everything which was execrable in this world. They were
responsible for the French revolution and they ran counter to the very
principles upon which the world rests and must continue to rest. “ Man
. . . as an individual is too wicked to be free/’37 “ Human reason, re
duced to its own forces is but a brute whose whole power is merely
destructive'* (I, 357). No human institution originates from Reason,
which would only prevent and destroy it (I, 367). True, they occasion
ally play with the concept of “ Nature." The “aristocracy is sovereign
. . . in its very essence and the principle of the French revolution of
fend the eternal laws of nature" (I, 357). But it is not more than a
mere playing with words, for the justification of the authorities lies in
faith and patriotism (I, 37). It is not the nature of man, it is “ authority”
which “ has planted the seeds of civilization in society.” 38
Donoso Cortes in Spain, as a Catholic, and Friedrich Julius Stahl
in Prussia, as a Protestant, expressed the same hatred of Natural Law
as did de Maistre and Bonald. Donoso Cortes denounced the social
contract as an absurdity 39 He foresaw the growth of European des
potism and he believed that democracy prepared the way for a “ gigan
tic, colossal, universal, and immense tyrant” (L ’Eglise et la Revolution
[1848] Vol. I, 332). Like de Maistre and Bonald he believed in the
essential wickedness of man.40
Friedrich Julius Stahl, the founder of the conservative theocratic
theory of the Prussian State, intended his whole work to be nothing
but a refutation of Natural Law and the Hegelian theory of the State.
For this purpose he divided all political parties into two kinds—revo
lutionary and conservative. By revolutionary this great demagogue not
merely understood the socialist doctrines but all liberal, all democratic,
in short, all those political parties in the Church and the State in which
the Natural Law ideology was still alive. “ It is a revolution to oppose
civil society to the state of nature, and thereby to set man free from all
traditions of law and custom, to reduce the well ordered society to an
original chaos and to take from this chaos the standards by which the
social order is measured. It is a revolution to destroy the whole public
body of the State, the whole moral order of the nation, and to leave
nothing except the rights and the mutual security of the individuals.
It is, finally, the essence of revolution, to deny to the authority power
in its own right, founding it on the will of the people.
Natural Law from Grotius to Kant is the scientific foundation of
revolution.” 41
Stahl’s criticism is applicable, and with as much justification, not
only to the rationalistic but also to the ancient and Thomistic theories.
This can be shown if we turn to the pragmatic character of Natural
Law doctrine and attempt to develop a pragmatic typology. W e may
then roughly divide Natural Law doctrines into conservative, absolu-
tistic, liberal, democratic and revolutionary.
VI
The representative conservative doctrine is the Thomistic one. Its
structure is so well known that hardly anything need be added. God
is the source of the lex divina. From the lex aeterna is derived the lex
naturalis.42 All men, as rational creatures, participate equally in the
lex naturalis (1, II, 91, 2). Its supreme principles are eternal and un
changing, though their recognition may be hindered by passion (1, II,
91, 6). Below the lex naturalis come the positive laws which must con
form to three conditions. They must serve the common good (1, II, 90,
2); they must be just, that is, the burdens must be distributed accord
ing to proportional equality; and, finally, they must be issued by a
legislator within the bounds of jurisdiction (1, II, 90, 4). Any norm
which fulfils these three conditions is binding both in foro conscientiae
and in foro externo. If the conditions are not fulfilled, passive resistance
becomes a duty since even God cannot dispense with the prescrip
tions of the lex naturalis (1, II, 100, 8 ad 2). The hierarchy of the three
fold norms has been carried out with meticulous care.
There is no doubt that Thomistic Natural Law is, on the whole, a
kind of codification of the feudal order, a completely authoritarian or
der.43 Saint Thomas accepts and justifies the distinction between sui
and alieni juris (2, II, 183, 1), between the optimates at the top, the
populus honorabilis in the middle, and the vilis populus at the bottom
of the social pyramid (I, 108, 2). Even slavery, though a necessary evil,
is legitimate, and property is by no means the product of original sin.
The doctrine of original communism is therefore rejected 44
Insofar as Thomism endows a profoundly antagonistic society with
the sanctity of Divine and Natural Law, it is no more valid than any
other Natural Law theory. But to see Thomism merely as a kind of
ideology intended to cover feudal exploitation with the cloak of an
eternally valid law is to present but one aspect of the system. The
recognition of man as a rational creature means that “ every individual
is by virtue of his eternal destination at the core wholly and inde
structible even in relation to the Highest Power/'45 The doctrine thus
contains a psychological dynamism which completed itself in spite of
the mere ideological character of parts of the Thomistic theory. It is
just this rational and fundamentally optimistic theory of man which
sets the Thomistic doctrine against political Augustinism and the ado
ration of thaumaturgic kings. Thomism is the response of the Catholic
Church to the challenge of political Augustinism. Thomism also gave
the Church a weapon for attacking the superstitious adoration of
kings who, through the unction, claimed charismatic powers. The
belief in the mana of kings, particularly expressed in their alleged heal
ing power, ran counter to the very foundations of the Church. It placed
the king above the Church and made him God-like. The king is then
not merely “ God's deputy on earth,” to use Bracton's phrase, but he
becomes a little God himself. The idea, oriental in origin, was trans
planted in the W est through Alexander of Macedonia, who claimed
and received veneration as God.40 It was in full swing under Augustus,
who was acclaimed as the Messiah. It was accepted by the Germanic
tribes, where the charisma were supposed to reside in the tribe.47 It was
bitterly attacked by the Church although, to a large extent, the Church
was responsible for the continuous life of this superstition. W hen the
Carolingians overthrew the Merovingians by their famous coup d'etat,
it was the Church which, through Pepin's unction, endowed him and
his successors with supernatural justification. The Pope, as the oracle
of Natural Law, even made the unction a sacrament, thus admitting
that the king is God's vessel and that God's grace rests upon him: In
doing so, the Church, for reasons of expediency, abandoned its old
policy of fighting against the veneration of the Byzantine kings, espe
cially the Proskynesis. It soon had to take up the fight against the in
creasing deification of kings. The French kings from Robert the Pious,
and the English kings from the Plantagenets, claimed and practised
the power to heal, especially to heal scrofula (the “ King's Evil” ). The
Gregorian dispute was not merely a fight for power between the secu
lar and spiritual authorities, but the fight of a rational doctrine of
Natural Law against the magic and supernatural powers of kings 48
In the course of the discussion, the unction ceased to be considered as
a sacrament, the emperor became a layman like any other, and through
out the middle-ages and far into the 18th century the Church waged
a tireless war against the superstitious practices.49
Only when seen in this dual polemical position is it possible to un
derstand the essentially progressive trait of Thomistic Natural Law,
in spite of its ideological character.
VII
It is exactly on this point that we can clearly see the incompatibility
of Calvin's political theology and, to a lesser degree, of Luther's doc
trine, with Natural Law. Calvin's political thought is directed against
two opponents: medievalism on the one hand and the revolutionary
Natural Law of the sects on the other. Thomas Aquinas is as much his
enemy as are the anabaptists.50 Man is no “ rational creature,” for his
“ integrity of understanding has been destroyed” 51 by his fall. Truth
cannot be perceived for there is only a restricted capacity of perception.
The ultimate truth can never be ascertained by reason but merely by
God’s grace.52 “ Here we are led back to our birth in order to show us
that the reason which we possess is a gift of God outside of our nature
. . . when a child leaves the womb of his mother, what wisdom does it
possess? . . . a child is less than the poorest beast . . . how is it that we
possess the spirit of intelligence when we have come to age? It is neces
sary that God gives it to us.” 53 God’s election is not a reward for a pious
life or for good works, it is an arbitrary decision and may even be con
ferred upon a pagan. The ruler, the magistrate, the successful business
man, the political leader, the foreman in the factory, all of them owe
their position to God’s election. They must, therefore, be obeyed. It is
not the abstract authority relation which receives the sanctity, but,
rather, the concrete holder of power who is endowed with charismatic
qualities. There can thus be no trace of Natural Law. If the conscience
of man is corrupt, so is Natural Law. The law of nature does not make
it possible to perceive God’s justice.54 Conscience and Natural Law
are unable to teach us our behavior. The State is neither a natural in
stitution nor the product of man’s needs and wants. It is God’s insti
tution. By establishing the “ divine right of the established order.” 55
Calvin demanded voluntary obedience to all the established powers.
Two objections may be raised. First, Calvin sometimes speaks of a
mutual obligation between rulers and ruled. But he explicitly and im
plicitly denounces the mediaeval doctrine of the governmental con
tract, and there can be no doubt that the obligation which he has in
mind is not a contractual one but unilateral towards God.56
Secondly, there is the famous proclamation of the right to resist
conceded to those magistrates who have the constitutional right to do
so.57 This statement, of which much has been made in the history of
political thought, does not give the slightest indication that Calvin
recognizes some kind of Natural Law.58 If the Protestant monarcho-
machs59 used Calvin’s institution they falsified French history in order
to fabricate a historic right of resistance against the monarchy. If
Henry of Navarre encouraged Hotman to continue his “ researches”
into French history together with Duplessis-Mornay60 in order to
solidify Henry’s position, Natural Law plays no role. Here are ad hoc
doctrines not based on original rights of man but on so-called historical
rights of certain privileged groups. If John Knox in Scotland, in attack
ing his Catholic queen, arrogated to himself the right of resistance, he
might have deviated from Calvin’s Institution or he might have con
sidered himself the “ saviour of his people,” the latter concept playing
a decisive role in Calvin’s system. The stress which has always been laid
on the right of resistance by magistrates has tended to overshadow an
other means of overthrowing established government outside the
framework of the constitution. Calvin maintained that God may send
the people a providential saviour.61 He may appoint one of his servants
and send him out to punish an unjust ruler and deliver the people
from oppression. It is again characteristic that the deliverance of man
from despotic rule is entrusted to a charismatic leader. The oppressed
themselves are never allowed to revolt. The only freedom left to the
oppressed is to obey either their ruler or their saviour. The anti-ra
tional and anti-Natural Law doctrine is thus apparent not only in
Calvin’s doctrine of authoritarian rulership but equally in his doctrine
of revolution.62
VIII
There is a profound difference between the conservative Natural
Law doctrine of Thomism and the rationalistic—absolutistic doctrines
of Hobbes, Spinoza and Pufendorf. At first sight the three systems
appear to be profoundly retrogressive since they apparently sacrifice
human rights to the all pervasive power of the state. Hobbes’ theory
must, however, be contrasted with the Tudor63 and Stuart64 theories
of kingship. “The King is, in this world, without law, and may at his
lust do right or wrong, and shall give accounts but to God only.” 05
This is no longer the medieval theory of kingship which placed the
king under Natural Law and made him responsible not merely to his
conscience but to man. Henry V III is likened to the “ Son of Man.”
One “ dares not cast (his eyes) but sidewise upon the flaming beams
(of the king’s) bright sun which (he) in no wise can steadfastly be
hold.” 66 Obedience to Henry V III was not merely a civil duty; it also
became a religious duty. Lutheran and Calvinist doctrines, remnants of
medieval Natural Law, and above all the adoration of the king’s per
son, form the hodge-podge which constitutes the theoretical basis of
the Divine Right. Nor were the Stuart theories any better.
Yet the need for concentration of national power was indisputable.
A secular state was needed, free from the supremacy of the Catholic
Church, capable of fighting foreign invasion, subordinating local and
feudal autonomies. The rule of the king could, in the period of re
ligious schism, no longer be justified by thomistic Natural Law. The
adoration of the king may have been expedient so long as the king
really seemed to emanate some kind of charisma. This is hard to con
ceive with Henry V III and impossible to imagine with Charles I.
There remained but one doctrine: the theory of the social contract,
derived from the pessimistic view of man's nature. It provided the
means for establishing authority and justifying any authority which
could protect the frontiers, restore peace and order, and secure prop
erty. In spite of its absolutistic character, Hobbes' theory is, however,
at its core democratic.67 The democratic starting point is clearly ex
pressed by Hobbes himself. The “ people rule in all governments,''
because every government, when first established, was necessarily a de
mocracy.68 The democratic kernel and the inherent revolutionary dy
namics were clearly perceived by the Court and rejected by the ruling
classes, who were afraid and ashamed of that outspoken philosopher
whose materialism allowed no veiling ideology. “ I never read a book
which contained so much sedition, treason and impiety" exclaimed
Charles II. The contemporary political theory recognized this revo
lutionary tendency as clearly as Friedrich Julius Stahl did subse
quently.69
The same holds true of Spinoza. The establishment of the secular
and rationally justifiable authority in Holland was a much more pro
gressive postulate than any of the political demands of other groups.
The flirtation of William of Orange with the democratic movement is
no more edifying than the pseudo-democratic theories.
Pufendorf, in his rather flat rationalism, considers Natural Law as
an imperfect obligation lacking the necessary sanctions. The fulfill
ment of Natural Law is “ left solely to the divine judgment seat,"70 and
“ neither the fear of divinity nor the sting of conscience are sufficient."71
At the same time Pufendorf laid the basis of the Rechtsstaat theory.
From the maxims of his Natural Law he developed a complete and
self-sufficient system of rational law which, with almost mathematical
Types of Natural Law (8y)
precision, defined the rights and duties of the citizens, their contrac
tual relations, the protection of their liberty and property. So complete
was this system that, far into the period of liberalism, it could still serve
as the textbook of jurisprudence.72
W e may sum up: Although the absolutistic theories of Natural Law
sacrifice human rights to the need for establishing a central coercive
authority, they are predominantly rational because they base the au
thority upon the consent of man. They, too, must therefore recognize
the essential and indestructible rationality and equality of man.
IX
W e do not need to add much about revolutionary Natural Law doc
trines. It would be wrong to assume that they are always progressive.
They are often merely devices to entice dissatisfied masses and to
utilize them for narrow and completely egotistic aims. From the
abundance of material, hardly ever discussed, we may choose, at ran
dom, some examples of this social phenomenon. There seem to be
genuine revolutionary Natural Law doctrines in the heterodox theories
of the middle-ages, especially in Latin Averroism. The most striking
misuse of a genuine revolutionary Natural Law doctrine is that in the
Albigensian movement. A movement, pledged to realize a perfect life
on this earth, fighting against simony and Nicolaism—which had been
resurrected in spite of the Gregorian reform—, a movement which at
tacked a vulgar and debauched clergy, challenged the right of property
and rejected the right and duty to carry arms; which advocated, though
obscurely and in a very contradictory way, some kind of socialism de
duced from original rights of man,73 was misused by feudal aristocrats
and finally exterminated.
Nor can we find any progressive Natural Law doctrine in the dis
putes between Philip the Fair and Boniface V III. The theories of the
curialists (especially Aegidius Romanus) and of the Royal party (John
of Paris, William Nogaret, Pierre Dubois) are opportunist theories of
the very worst kind.74 W e must not forget that the apologists of
Philip the Fair (like William Nogaret) and of Ludwig of Bavaria (like
William Ockham75) never hesitated to endow their masters with super
natural qualities,76 selecting their arguments from every available doc
trine whether it be Augustine or St. Thomas, Aristotle or the Roman
Lawyers, the Old or the New Testament.
The mere demagogic function of revolutionary Natural Law be
comes very clear in the doctrines of the Catholic monarchomachs, Jean
Boucher77 and Guillaume Rose.78 Boucher’s and Rose’s theories are
apparently democratic and far more consistent than those of their
calvinist opponents. It is important to ascertain the social function of
these democratic theories, because they became historical realities in
the struggle of the League and of the City of Paris against Henry III
and Henry IV . The New League of 1585, organized for the fight against
Protestantism, had a firm hold upon the lower classes, fortified by the
mob which soon played an outstanding role.79 The new program of the
League promised everything to everybody: the restoration of true re
ligion; of the liberties of the nobles; to help the people; to defend the
rights of the ParJements and to demand the regular convocation of the
Estates General. This did not prevent the alliance of the League with
the Duke of Guise and with Spain. The ensuing civil war follows a
familiar pattern. In the name of original human rights and of Natural
Law, the League exhorted its adherents to kill and murder opponents.
The City of Paris sent emissaries into the provinces in order to or
ganize them on a strictly democratic basis. The demagogic character of
Boucher’s theory becomes still clearer after the accession of Henry IV .
Paris was organized in 16 Quartiers. A municipal democracy was estab
lished with full concentration of legislative, administrative and judicial
powers, which were finally transferred to a Council of Ten (1591).
Emigres were persecuted, their property confiscated, and revolutionary
tribunals instituted. W e have here a specific revolutionary Natural
Law, a forerunner of that of the French revolution and of the Paris
Commune of 1870. The doctrine of the social contract was used to in
vest popular bodies with full and even terroristic powers, completely
discarding the separation of powers for which the French Parlements
and the Estates General had been fighting and continued to fight.
Though the organizational forms of the religious wars were revolu
tionary, the social aims were in no way so. Boucher, Rose, Dorleans,
and other Catholic leaders of the League were genuinely concerned
with the restoration of the Catholic religion. But the decisive powers,
the feudal leaders at the top and the mob at the bottom, cared little
for religious disputes. Instead, they used religion and the social pro
test of the impoverished masses for so complete a perversion of these
postulates that the outcome of the religious wars was merely the
stabilization of the royal authority and the complete suppression of
democratic and liberal natural law.
X
Finally, we must mention the constitutionalist doctrines. Only a
mere mention is necessary since they are very well known and, be
sides, have recently received admirable treatment from Charles How
ard Mcllwain.80 The constitutionalist doctrine may, as we already
mentioned, be linked to any theory of the State except the charismatic
one. It simply contains the demand for a restriction and limitation of
the sovereign power by a system of norms which are regarded as being
above the positive laws of the State. The line of development of the
constitutionalist doctrine is clear. It runs from stoic natural law to the
Roman jurists and Cicero. It pervades the legal and political thought of
the middle ages. It becomes the theory of the French enlightenment.
That, of course, does not mean that modern constitutionalism is
solely the product of liberal Natural Law. I have tried to show, in an
earlier article in this journal,81 that in continental Europe the influence
of Descartes and mechanistic philosophy, especially on Montesquieu,
must not be overlooked. Nor can restrictions imposed upon the sov
ereign power by tradition (such as the common law in England or the
Lois Fondamentales in the ancien regime) be identified with Natural
Law. Constitutionalism is thus made up of three elements: optimistic
Natural Law, mechanistic philosophy—that is, the belief in abstract
general rules providing for calculable and predictable relations be
tween the states and its citizens—, and common law embodying an old
tradition. Constitutionalism likewise takes three forms: the German
Rechtsstaat, where rights are preserved not by the participation of the
citizens in the formation of the general will, but by the construction
of an elaborate legal system providing for the highest amount of cal-
culability; the English doctrine of the Sovereignty of Parliament and
the Rule of Law where the protection of life, liberty, and property is
primarily secured through the democratic origin of legislation and the
tradition of common law; and the American form of judicial supremacy,
which protects rights through judicial review of legislative acts, .at
tempting to extend it over administrative decisions.
The one problem produced by the antagonism between the demo
cratic conceptions and the liberal theories, cannot be exhaustively dis
(go) Types of Natural Law
cussed here. I again refer to my earlier article. The doctrine of natural
rights may very well be used for entirely reactionary aims, namely, for
the sabotage of democratic processes.82 The insistence upon the pri
macy of a liberal as compared with a democratic Natural Law is often
the first step of a counter-revolution. To deal with these trends would
involve a considerable enlargement of the present study. But though
reactionary, even this perverted doctrine of natural rights does at least
contain elements of a rational theory of law. Though used for pre
serving antiquated positions, it still allows some discussion. The weak
ness of the constitutionalist doctrine is that it maintains its absolute
and equal validity against any theory of the State, even against the
democratic one. The democratic theory of Natural Law is, however,
on the whole, a truer one than any other, since it provides for the
rational justification of the State.
Conclusion
W e may sum up the results of our analysis.
1. Every Natural Law theory, whether optimistic, pessimistic or
agnostic, whether conservative, absolutistic, revolutionary, democratic
or liberal, is based on the view that man is a rational creature.
2. It follows that only man and not artificial persons, like corpora
tions or states, can base his rights on the law of nature.
3. Natural Law thus insists on the universality of law and the im
possibility of reducing any man to the status of a slave.
4. It implies the impossibility rationally to justify any kind of
tyranny and oppression.
5. The truest of all Natural Law doctrines is the democratic one.
Wherever a democratic Natural Law theory exists, a liberal one can
only have a subsidiary function.
6. Whenever Natural Law doctrines deduce elaborate systems with
political and social postulates (whether it be private property or social
ism) they are arbitrary and have no validity.
7. The principles which are still valid, although not solely derived
from Natural Law, are the generality of the law, the equality of men,
the prohibition of individual legislative decisions, the impossibility of
retroactive legislation, especially in penal law, and an independent
judiciary.
Types of Natural Law (gi)
This may be little. But that little stands in complete contrast to au
thoritarian theory and practice.
Notes
1 . Juiisprudenz und Rechtsphilosophie, V ol. I, Leipzig, 1892.
2. New York, 1904, p. 1 1 .
3. T he best exposition of Ilum e's position is to be found in George H. Sabine,
A History of Political Thought, New York, 19 3 7 , PP- 59 8 -6 16 .
4. C f. the article of Herbert Marcuse in this number.
5. “ Ober die wissenschaftlichen Behandlungsarten des Naturrechts” (not trans
lated) contained in Schiiften zur Politik und Rechtsphilosophie, ed. G . Lasson,
Leipzig 1 9 1 3 , PP* 329~ 4 l 6 -
6. C . E . Vaughan, The Political Writings of J. J. Rousseau, vol. I, p. 13 7 . The
translation is taken from C . E . Vaughan, Studies in the History of Political Phi
losophy before and after Rousseau, vol. I, Manchester 1939, pp. 17 2 , 17 3 .
7. L e Proces de Socrate, Paris 1889.
8. Benjamin Fletcher W right, in American Interpretations of Natural Law,
Cambridge, U.S. 1 9 3 1 , pp. 3 3 3-8 , distinguishes eight meanings of the concept
“ natural.”
Divine— Reasonable (discovered by human reason)— In accord with the con
stitution of man— In keeping with custom firmly established— Just and equitable
— Ideal, contrasted with the actual— Appropriate and useful— Original, as con
trasted with the conventional.
Although these categories are exhaustive, this does not necessarily mean that
they answer the philosophical question.
9. W ilhelm Schwer, Stand und Standeordnung im Weltbild des Mittelalters.
(Schriftcn der Gorresgesellschaft N o. 7), Paderborn, 19 34 , pp. 32-50 .
10. Aristotle, Atheniensium Respublica, transl. Kenyon (Oxford ed.) V ol. X
( 1 9 1 1 ) ch. V II I , 1.
1 1 . Ethica Nicomachea, transl. Ross (Oxford ed.) V ol. IX (1923) 1 1 3 4 b, 18 ;
1 13 6 b , 32; 1 1 3 3 a , 30.
12 . Op. cit. 1 1 3 7 b, 7; i i 3 7 a, 34.
1 3 . On Rousseau’s theory of the natural state cf. C . E . Vaughan, The Political
W ritings of /. /. Rousseau, vol. I, pp. 1 58, 159 .
14 . From : E . G . Guhrauer, Gottfried Wilhelm von Leibnitz, z Vols. Breslau
184 5, V ol. I, p. 233.
15 . This point is made by Julius Kaerst, “ Die Entstehung der Vertragstheorie
im Altertum ” in “ Zeitschrift fur Politik,” V ol. II (1909), p. 536.
16 . Treatise, p. 19.
17 . C . E . Vaughan, Studies, vol. I, p. 169.
18 . Treatise, p. 99.
19. I.e. “ Law of Nature obliges always in conscience (in foro interno), but not
always in foro externo” Leviathan (Molesworth ed.) V ol. I ll, ch. X V , p. 145 or
“ If the sovereign commands a man, though justly condemned, to kill, wound or
maim himself; or not to resist those that assault him; or to abstain from the use of
food, air, medicine or other things without which he cannot live, yet hath that
man the liberty to disobey.” — op. cit. ch. X X I, p. 2 04. Note the ambiguity of the
words “ not always” in the first, and “ other things” in the second quotation.
20. Tractatus Politicus (Opera, ed. van Vlooten and Land, 3rd ed., 19 13) ch. IV ,
2 1. Metapliysik der Sittcn. Rechtslchre II, 1. Allgemcine Anmcrkung A. (Transl.

Ilastie p. 17 5 ) “ For, whoever would restrict the supreme power of the state must
have more, or at least equal power, as compared with the power that is to be so
restricted, and if competent to command the subjects to restrict, such a one would
also have to be able to protect them; and if he is to be considered capable of judg
ing what is right in every case, he may also publicly order resistance. But such a
one, and not the actual authority, w'ould then be the supreme power: which is
contradictory." T he reasoning is unassailable.
22. Leviathan, ch. X X I, p. 208: “ T he obligation of subjects to the sovereign, is
understood to last as long, and no longer than the pow'er lasteth, by w'hich he is
able to protect them. . . . T he sovereignty is the soul of the commonwealth; which
once departed from the body, the members do no more perceive their motion from
it. T h e end of obedience is protection."
23. Tractatus Theologico-Politicus, ch. X V I ; Tractatus Politicus, ch. II, 4.
24. Op. c it., p. 1 8 1 .
25. Bodin: Les six livres de la rdpublique, Lyon 1588. I quote a few' examples:
I, V I I I : la souverainet6 est la puissance absolue et perpetuelle d’une r^publique,
and
I, 1 : Rdpublique est un droit gouvemement de plusieurs menages . . . or
I, X : la loi n’est autre chose que le commendement du souverain, usant de sa
puissance.
I, V I I I : Si done le Prince souverain est exempt des loix de ses prcdecesseurs,
beaucoup moins seroit il tenu aux loix et ordonnances qu’il fait; car on peut bien
recevoir loi d’autroy, mais il est impossible par nature de se donner loy, and
I, V I I I : mais quant aux loix divines et naturelles, tous les Princes de la terre y
sont subjects, et n’est pas au leur puissance d’y contrevenir. E t par ainsi la puissance
absolue des Princes et seigneuries souveraines ne s'etend aucunement aux loix de
Dieu et de nature.
26. As has been pointed out by Charles II. M clhvain, The Growth of Political
Thought in the West, London, 19 3 2 , p. 303 and Marsilius of Padua, Defensor
Pads ed. Previt£-Orton, Cambridge (England) 1927, Dictio I, X II.
27. Georges de Lagarde, La Naissance de VEsprit Laique, vol. II, Paris, p. 86.
28. Defensor Pads, Dictio II, v, p. 14 7 .
2 9 . Defensor Pads, Dictio II, xxi, p. 335.
30. For support of this view', see Contrat Social II, 2 (note of 1762); or the
Corsican Constitution (Vaughan V ol. II, pp. 3 13 , 3 5 1) where he recommends a
mixed government and Estates General.
3 1. Une capitale cst un gouffre . . . De la capitale s'exhale une peste continuelle
. . . Fconomie Politique (Vaughan, V o l. II, p. 253).
32. Emile, Book V , (Vaughan, vol. II, p. 152).
33. Lettres de la Montague (letter v.) (Vaughan, vol. II, pp. 342, 343).
34. Corsican Constitution (Vaughan, vol. II, 337).
35. Corsican Constitution, (Vaughan, vol. II, p. 355).
36. Esp. Pareto.
37. de Maistrc, Oeuvres Completes, Lyon 18 9 1- 1 8 9 2 V ol. II, 399.
38. Bonald, Oeuvres Completes, Paris 1864, V ol. I, 1 2 1 .
39. Pic IX , (1847), Oeuvres de Donoso Cortes, Marquis de Valdegamas.
Third ed. Lyon 18 77, V ol. I, p. 2 17 .
40. Poldmiquc avec divers /ournaux de Madrid (1849) V ol. I, 359.
4 1. Vber die gegenw'artigen Paiteien in Staat und Kirche, Berlin 1883, p. 23.
42. Summa Tbeologica, 1, II, 9 1, 2.
43. J. N . Figgis, Studies in Political Thought from Gerson to Grotius, Cam
bridge, England, 1 9 3 1 , p. 12 ; Schwer, op. cit., p. 9.
44. Bede Jarrett, Social Theories of the Middle Ages, Boston 1926, p. 104 ;
Schwer, op. cit. p. 34.
45. Otto Gierke (transl. Maitland), Political Theories of the Middle Ages, Cam
bridge, England, 1927.
46. Julius Kaerst, Studien zur Entwicklung und theoretisclien Begriindung der
Monarchic im Altertum, Miinchen, Leipzig 1898, pp. 40, 4 1.
47. Fritz Kern, Gottesgnadentum und Widerstandsrecht im fiuheren Mittelalter,
Leipzig 19 14 , p. 20.
48. Marc Bloch, Les rois thaumaturges. Etude sur le caractdre surnaturel attribue
£ la puissance rovale particulicrement en France et en Angleterre. Strasbourg, 1924,
p. 12 3 . Bloch reproduces a particularly important letter from Gregor V II to Arch
bishop Hermann of Metz. I give an English translation: “ W here does one find
among the emperors and kings a man who equals by his miracles St. Martin, St.
Anton or St. Benoit, not to speak of the Apostles or martyrs; who is the emperor
or king who has resuscitated the dead, given health to the lepers and light to the
blind? Consider the emperor Constantine, of pious memory, Theodore and Hon-
orius, Charles and Louis, all friends of justice, propagators of the Christian religion,
protectors of the church; the Holy Church praises and reveres them; it does not
indicate that they have excelled by the glory of such miracles."
49. T h e great medieval English humanist, John of Salisbury, Policiaticus ed.
W ebb (Oxford, 19 19 ) V ol. I, p. 202, denounced the thaumaturgic powers of the
kings as a dangerous regression.
50. J. W . Allen, A History of Political Thought in the Sixteenth Century, Lon
don, 1928, pp. 35-4 8.
5 1. Institution Chretienne II, 2 , 1 4 .
52. Op. cit. II, 2 , 1 2 .
53. Quoted and translated from Marc-Edouard Chenevriere, La Pensee Politique
de Calvin, Geneva-Paris, 19 3 7 , p. 5 9 . T h e quotation is from Corpus Reforma-
torum, V ol. 33, p. 542.
54. Institution Chretienne, II, 8, 1 ; IV , 20, 16 .
55. Georges de Lagarde, Recherches sur VEspiit Politique dc la R 6 forme, Paris,
1926 , p. 227.
56. Institution Chretienne, IV , 20, 29; IV , 20, 27.
57. Op. cit. IV , 14, 17 .
58. Kurt Wolzendorff, Staatsrecht und Naturrecht in der Lehre vom W ider
standsrecht gegen rechtswidrige Ausiibung der Staatsgewalt, Breslau, 19 16 , has
shown that Calvin’s right of resistance is a mere generalization from existing con
stitutions.
59. Esp. Francois Hotman, FrancogaIJia, 2nd ed. Colonia 15 7 4 , and the author
of the Vindiciae.
60. Beatrice Reynolds, Proponents of Limited Monarchy in Sixteenth Century
France. Columbia Dissertation, New York, 1 9 3 1, p. 92.
6 1. Institution Chretienne, IV , 14 , 17 .
62. I do not deal with Luther’s political theory because he has none. His con
cept of Christian Freedom, although conceived entirely as inner freedom (Of
Christian Freedom, 1520), where freedom of the soul and subjection to external
authorities are merged, still allows the opposition of a bad world by a truer and
better one. Luther, in contrast to Calvin, distinguishes between the office as such,
which may and must demand unconditional obedience, and the office-holder. In
spite of the authoritarian character of his political writings, Lutheranism could,
because of the concept of inner freedom, become the ideological basis for the revo
lutionary Natural Law of the sects (i.e. das Magdeburger BeJcenntnis, cf. Allen,
op. cit. pp. 10 3 -10 6 ) and the constitutional Natural Law of Melanchton. T he re
lation of Luther to Natural Law is still the subject matter of much controversy.
T he following are important:
Karl Holl, Gesammelte Aufsatze zur Kirchengeschichte, V ol. I, 4th and 5th
ed., Tubingen, 19 27, esp. pp. 15 5 seq. and 239 seq.
Eugene Ehrhardt, La Notion du Droit Nature! chez Luther, Paris 1 9 1 1 .
Franz Xaver Arnold, Zur Frage des Naturrechts bei Martin Luther, Miinchen
19 3 7 (Catholic, with imprimatur).
63. An excellent presentation of the Tudor theory of kingship is presented by
Franklin van le Baumer, T he Early Tudor Theory of Kingship, N ew Haven, 1940.
64. T he best analysis of the theory of kingship of James I has been given by
Charles H . M cllwain in his introduction to The Political Works of James I, Har
vard, 19 18 .
65. W . Tyndale, “ Obedience of a Christian M an” in “ Doctrinal Treatises by W .
Tyndale” ed. H. W alter (Parker Society) Cambridge, 184 3, p. 178.
66. From Baumer’s book, p. 86.
67. A very careful analysis of the change in Hobbes’ social contract theory has
been made by Frdd^ric Atger, Essai sur VHistoire des Doctrines du Contrat Social,
Paris, 1906.
68. Philosophical Rudiments, Molesworth, ed. V ol. II, pp. 100, 160.
69. Gierke draws attention to the absolutist Johann Friedrich Horn who, in
his Politicorum pars architcctonica de Civitate, Traj. a. Rh. 1664, denounced
Hobbes as a revolutionary. Gierke, Althusius (transl. by B . Freyd as The Develop
ment of Political Theory) N ew York, 19 38, pp. 76, 79, 17 7 .
70. EJementorum Jurisprudentiae Universalis (1660) (transl. Oldfather). Classics
of International Law, Oxford, 1 9 3 1, p. 160.
7 1 . De Officio Hominis et Civis Juxta Legem Naturalem, 16 2 3 (transl. Moore).
Classics of International Law, Oxford, 19 27, p. 104.
72. Pufendorf’s position and influence are almost identical with that of Black-
stone.
73. P. Alphanddry, Les Id 6 es Morales chez les H&erodoxes Latins au XHIe
Sidcle, Paris, 1903.
74. Richard Scholz, Die Publizistik zur Zeit Philipp des Schonen und Bonifaz
V III, Stuttgart, 1903.
75. Richard Scholz, Unbckannte Kirchenpolitische Streitschriften aus der Zeit
Ludwigs des Bayern, Part I, Rome, 1 9 1 1 J n ; Part II, Rome, 19 14 s. X II.
76. Bloch, op. cit., pp. 129 , 142.
77. De iusta Ilenrici Tertii Abdicatione e Francorum regno, Paris, 1589 , and
Sermons de la simulte Conversion et Nullity de la Pr 6 tendue Absolution de Henry
de Bourbon, Paris, 1594.
78. Rose has been identified by Charles II. M clhvain as the English refugee
W illiam Reynolds. C f. Charles H. M cllw ain, Constitutionalism and the Changing
World, N .Y . 1939 (W ho was Rossacs?) Rose’s work was D e Justa Reipublica
Christianae in Rege Impius, Paris, 1590.
79. Lavisse-Maridjol, Ilistoire de France. V ol. V I, 1, Paris, 1905, p. 243.
Types of Natural Law (g$)
80. Constitutionalism, Ancient and Modem, Ithaca, 1940.
8 1. “ Der Funktionswandel des Gesetzes im Recht der biirgerlichen Gesell-
schaft,” Z eitschrift fur Sozialfoischung, V I ( 1 9 3 7 ) pp- 542-596, esp. p. 556.
82. That is why it has been rejected by Linguet, the famous critic of the ra
tionalistic-liberal natural law doctrines. (Th6orie des Lois Civiles, London, 17 6 7 ,
2 Vols.)
[chapter 4]
i t:
MONTESQUIEU*
* 0 n the tenth of this month, died at Paris, universally and sincerely

regretted, Charles Secondat, Baron de Montesquieu, and President a
Mortier of the Parliament at Bordeaux. His virtues did honor to human
nature, his writings to justice! A friend to mankind, he asserted their
undoubted and inalienable rights with freedom, even in his own
county, whose prejudices in matters of religion and government he had
long lamented and endeavored, not without some success, to remove.
He well knew and justly admired the happy constitution of this country
where fixed and known laws equally restrain monarchy from tyranny
and liberty from licentiousness. His works will illustrate his fame and
survive him as long as right reason, moral obligations, and the true spirit
of laws shall be understood, respected, and maintained.” W ith these
words, Lord Chesterfield said farewell to his friend, Montesquieu.1
This, however, is by no means the undivided opinion of the English.
Macaulay thought differently about Montesquieu, who “ enjoys perhaps
a wider celebrity than any political writer of modern Europe. Some
thing he doubtless owes to his merit, but much more to his fortune. He
had the good luck of a Valentine. Specious but shallow, studious at
effect, indifferent to truth . . . he constructed theories as rapidly and
lightly as cardhouses, no sooner projected than completed, no sooner
completed than blown away, no sooner blown away than forgotten.” 2
Whom are we to believe, the W hig politician or the W hig historian?*4
* Reprinted from Montesquieu, T he Spirit of the Laws, translated by Thomas
Nugent (New York: Hafner Publishing Company, 1 9 4 9 ) , pp. ix-lxiv. The follow
ing kinds of abbreviation are used in this essay; their meanings are given in paren
theses: X I, 6 (The Spirit of the Laws, Book X I, chapter 6); P 100 (Letter N o. 1 0 0
of the Persian Letters); P — F , I, 40 (Pensecs et Fragments, V ol. I, p. 40); V O , II,
4 (Voyages, V ol. II, p. 4); Considerations (Considerations on the Causes of the
Grandeur and Decadence of the Romans). See also the bibliographical note at the
end of this essay.
196 )
Montesquieu (9j)
W e could multiply statements which would show how radically diver
gent are the views of scholars and politicians about Montesquieu. There
is, however, almost complete agreement on the following points: that
his influence was enormous, that he was the first after Aristotle to write
a systematic treatise on politics, that this treatise was not derived from
the principles of natural law but based on historical facts (even if dis
torted); but that its structure, if indeed The Spirit of the Laws has a
structure, is very difficult to perceive.
W ho was this man whose name appears in all textbooks of history,
economic history, politics and social theory, who is still invoked by
politicians and scholars, and whose formula of the “ separation of
powers” as the device for securing liberty enjoys more reverence today
than perhaps ever before in history?
I. Montesquieu: the Man
C H R O N O LO G Y
Charles Louis de Secondat3 was born on January 18, 1689, at the
country seat de la Brede, the eldest son of Jacques de Secondat and his
wife Marie Frangoise de Pesnel. His father, who had been destined for
orders, refused to assume his ecclesiastical studies, chose instead the
army as his career, served in Hungary and returned to Bordeaux in 1686.
Charles lost his mother when he was seven years old. When eleven
years old, he was sent, with two orphan cousins, to the Oratorians at
Juilly, near Paris, where he received, for the next five years, the usual
classical education. Returned to Bordeaux, he studied law, received his
license in 1708 and in the same year was admitted as advocate at the
Parlement of Guyenne with its seat at Bordeaux. The selection of law
as a career was due to the wish of his uncle, Jean Baptiste de Secondat,
Baron de Montesquieu, President a Mortier,4 who, being childless,
desired to leave his office to his nephew. From 1709 to 17 13 , he lived at
Paris but returned to Bordeaux in 17 13 . The same year his father died,
and Charles Louis thus became the head of the family consisting of
one brother, a priest, and two sisters. He now settled down. He married
a Calvinist, Jeanne de Latrigue, who brought him a dowry of one
hundred thousand livres. He seems to have felt affection and esteem to
ward her, but no love. In 1714 , he was appointed counselor at the
(98) Montesquieu
Bordeaux Parliament, and in 1716, his uncle having died, he succeeded
him to his office as President a Mortier and, according to his uncle’s
terms, had to take the name of Montesquieu. But his scientific interests
soon outweighed his legal ones. He joined the Academy of Science at
Bordeaux, and became one of its most active members. His insatiable
thirst for knowledge drove him ever to expand his scientific interests.
A large number of his papers on physics, physiology, geology' and other
natural sciences are extant. They reveal the deep impress of the philoso
phies of Descartes and Malebranche, and a mind in constant search for
truth. His position, his activities, his learning, his seriousness, and his
wit, tempered however by his excessive timidity, made him a welcomed,
though slightly mysterious, member of the salons of Bordeaux.
In 17 2 1, the Persian Letters were published anonymously at Cologne
under the imprint of Pierre Marteau. His authorship was not long
hidden, and admiration and surprise greeted the book. Frequent trips to
Paris followed. In its salons, during the remaining years, he found
friendship with Maupertuis, Reaumur, Helvetius, D ’ Alembert, and
many others, but encountered hostility from the Jesuits. When he ap
plied for admission to the Academie Franfaise, Cardinel De Fleury
prevented his election under the pretext that Montesquieu was a resi
dent of Bordeaux.
In 1724, he wrote the Dialogue de Sylla et d’Eucrate (published in
1745, in the Mercure de France), in the same year the Reflexions sur
la monarchic universelle (published 1727) and in 1725 Le temple de
Guide, a frivolous book of which he himself was ashamed.
In 1726, he sold his office partly because he needed money, partly
because it simply bored him, returned to Paris and was admitted to the
Academy. His discourse was a disappointment. He had already begun
work on The Spirit of the Laws which was to occupy him for about
twenty years. From 1720 to 17 3 1, he traveled. He visited Austria,
Hungary, Italy, Germany, and Holland. In 1729, he arrived in England
and plunged into a study of English political institutions. As the author
of the Persian Letters, a nobleman, and the friend of Lord Chesterfield,
London was open to him.5 He became acquainted with most of the
W hig leaders; he assiduously attended meetings of the House of Com
mons just at the height of the conflict between Walpole and Boling-
broke, and while he did not meet men of letters, he enjoyed an active
correspondence with Hume and Robert Wallace. Perhaps his most
Montesquieu (99)
valuable acquaintance was Pierre Coste, a refugee Frenchman, who had
translated Locke, Shaftesbury, Newton, and other English writers, and
placed his encyclopedic knowledge at Montesquieu’s disposal. In 1730
the Royal Society elected him a member. Few of his notes on England
are preserved, for they were destroyed in large part by his grandson
Charles Louis, who, as a refugee from the French revolution, had
settled in England as an English citizen, and feared that publication of
the notes would offend English sensibilities.6 W hat is left, gives not
too flattering a portrait of England under Walpole.
In 17 3 1, he returned to la Brede, was admitted to the Free Masons,
and published, in 1734, his Considerations sur la grandeur et la decad
ence des Romains. This book forms, in reality, an intrinsic part of The
Spirit of the Laws and is vital to an understanding of his sociological
and historical method. During all this time, work on his magnum opus
continued. Books I—V III (perhaps also Book IX) were completed be
fore he started on his voyages, and were extended after 17 3 1; Books
X X X and X X X I were added while the book was in production. The
title of the book, Esprit des Lois, is probably borrowed from Jean
Domat’s Traite des Lois (1689) whose eleventh chapter is thus named.7
Published in 1748, the success of The Spirit of the Laws was over
whelming; according to Montesquieu, twenty-two editions were pub
lished. This success was due in part to the fact that it was the first sys
tematic treatise on politics, and in part to his championship of the no
bility and the Parlements, but above all to the brilliant style, “ the lyri
cism of his prose.” 8
However, attacks commenced almost at once. The Sorbonne and the
assembly of the Bishops threatened to ban the work. The philosophers,
Helvetius and Voltaire, although paying homage to his love of freedom
and his detestation for arbitrariness and intolerance, held it to be
merely a partisan publication in defense of aristocratic privileges. In
1750, therefore, Montesquieu wrote his Defense de YEsprit des Lois et
Eclaircissements. It is followed by two unpublished papers, the Mem-
01're sur la Constitution,9 and a Lett re sur le Parlewent, and, in 1754,
by the addition of eleven letters to the Persian Letters. A year later, he
died.
H IS P E R S O N A L IT Y
These bare facts do little to explain his personality. Both friend and
enemy liked him, his dignity, urbanity, his love for friendship, his taste,
(100) Montesquieu
his sincerity and, above all, his moderation.10 He, himself, was greatly
troubled by his timidity, which proved embarrassing to him on numer
ous occasions.11 Even those who class him among the partisans of
reaction and the opponents of revolution admit his abiding hatred of
political despotism, arbitrariness, religious intolerance, and inquisition.
But beyond such fairly abstract description, his character comes to
life but little in the many studies devoted to him. It is, perhaps, per
missible to interpret the Persian Letters not merely as a social and
cultural critique of France, as is usually done, but also as an autobio
graphical attempt, as a kind of self-analysis. The Persian Letters are let
ters exchanged by two Persian princes, on a visit to Europe, with each
other and with their friends, lovers, and servants in Persia and among
Persians. There is Rica, the younger and light-hearted, and Usbek, the
older and more reflective prince—the two main figures. There are some
of Usbek’s wives, Zachi, Fatme, Roxana; there are Rustan and Ibben,
the friends at home, there are the chief eunuch and some others. The
form of letters permitted Montesquieu to don several masks, to appear
in many disguises, to identify himself with varying opinions and posi
tions, to examine them in turn, and to reject each singly.
The concern of Montesquieu is by no means a mere social and cul
tural criticism of France. It is far deeper and goes, indeed, to man’s
basic problem, namely, man’s dehumanization. The theme which links
the Letters is his conviction that man’s destiny, dignity, and freedom
have been betrayed by and through all institutions—whether religious,
political, social, or personal. The Letters provide no answer—or, at best,
an inadequate one, to the problems of overcoming man’s total corrup
tion. To be sure, Montesquieu believes in God, but in a Cartesian
fashion. God is—and here he uses Descartes’ formula literally—“ a spirit,
immense and infinite” (P. 69) so that he has moved away from this
world and is no longer concerned with it. Montesquieu believed in
justice. The concern with it is deep and passionate (P. 10 and P. 84).
Justice exists objectively; it is “ a true relation between two things; a
relation always the same, whoever contemplates it, whether it be God,
or an angel, or, lastly, man himself. . . . Justice cries aloud; but her
voice is barely heard in the tumult of passions.” 12 The sense of justice,
innate in every man, is the sole protection that the weak has against
the strong.“ Without that we would be in continual terror; we would
move among men as among lions.” If justice were dependent upon
Montesquieu (1D 1)
human conditions “ it would be a truth so terrible that we would be
compelled to hide it from ourselves” (P. 84). But the concept of justice
without concrete embodiment remained merely a passionately desired
state of human relations. The form of letters permitted Montesquieu
an endless discussion about justice within himself,13 revealing a man
of intense scientific curiosity and great scientific caution—always in
doubt, but always in search of justice.
It is certain for him that revealed religion does not and cannot undo
the dehumanization of man—indeed it has rather created it. “As a man,
a citizen, a father of a family,” he can trust none of the holy texts of
the various religions, neither the Koran (P. 10, P. 18) nor the Scriptures
(P. 29, P. 46, P. 57). “ Religion is not so much a matter of holiness as
it is the subject of a debate” (P. 75); it is the concern of grammarians,
casuists, commentators, orators (P. 36, P. 135), but not a rule of life.
The churches are merely vested interests. When it suited the church
to gain adherents among the slaves in order to weaken the power of the
great lords, it fought slavery; as soon as it had established itself as a
secular power, it accepted and justified slavery (P. 75). The Pope is
merely a magician and the Bishops first concoct faith in order to be
able to dispense it through indulgences (P. 29).
W hat is true of the churches and of revealed religion is as true of
political society. Montesquieu was no patriot in the proper sense of
the word. He loved his country but he saw it most clearly manifested in
its soil and its old family virtues.14 He loathed expansionist wars and
the desire for glory, and admitted only wars for defense of the territory
and for aiding one’s allies (P. 96). Consequently, all principles of inter
national law appeared to him corrupted. Its science is “ a science which
teaches princes to what length they may carry the violation of justice
without injuring their own interests” (P. 95). Even severer were his
judgments of the domestic political institutions: a corrupt monarchy,
ruled by mistresses (P. 108) who have usurped “ all authority wholesale
but who retail it among themselves,” and a monarch who sells honors
for money (P. 93). The religious and political defects are but the mani
festations of a totally corrupt society, a society of intense boredom
(P. 1 11) . There is, on the one hand, an arrogant and prejudiced aristoc
racy (P. 48) and, on the other hand, a perhaps worse group of parve
nus.15 “ The body of footmen . . . is a nursery of great lords; it fills up
the vacancies in other ranks . . . they reestablish all the great families
(102) Montesquieu
by means of their daughters which are like a kind of manure enriching
barren and mountainous soil” (P. 99). This whole rotten society knows
but one arbiter: fashion. “ They confess with the greatest good will that
the other nations are wiser if you grant them that they are better
dressed; they are willing to submit themselves to the laws of a rival
nation provided French wig-makers may decide, like legislators, the
form of foreign perukes” (P. 101). Each man is driven only by egoism:
“ each man exalts himself at the expense of some other; the privileged
classes, the church, the sword, and the gown have nothing but sovereign
contempt for each other (P. 44). This intense egoism, the waste and
luxury of the rulers, are made possible by exploitation—“ that one man
may live delicately, a hundred must labour without intermission” (P.
107).
From this wholesale condemnation of contemporary society, how
ever, there emerge for him a few positive principles. There is a natural
religion16 which requires complete and absolute tolerance. Toleration
which must include the Jews in Europe (P. 60) as well as the Armenians
in Asia (P. 86) is not merely morally necessary but politically wise since
the expulsion of these groups would deprive the countries of industry
and trade, and, besides, “ a new sect introduced into a state was always
the surest means of correcting the abuses of the old faith” (P. 86).
Truth can be arrived at only through inquiry by a “ troubled mind” but
not by “ the universal decider” (P. 72). Truth, besides, is not merely
a result of thinking, it does not belong to the realm of thought alone.
“ There are certain truths which it is not sufficient to know but which
must be realized” (P. 11). It is the very split between “ conviction and
practice” (P. 75) which has led the church into the abyss.
Among the social institutions, only the family escapes the universal
verdict of condemnation; “ of all powers it [the paternal power] is that
which is least abused; it is the most sacred of all magistracies—the only
one which does not spring from a contract, which, indeed, precedes all
contracts” (P. 79). The Persian Letters contain, besides, a few political
principles foreshadowing the Esprit des Lois—they will be discussed
in that connection.
But the most searching inquiry', and Montesquieu's deepest concern
in the Persian Letters, is for the problem of love. Too often have the
discussions of love been understood to cover nothing but his libertine
attitude, and his descriptions of harem life are usually believed to be
Montesquieu (103)
spicy anecdotes designed to increase the sales value of his book. That
Montesquieu was capable of writing frivolous literature to the point
of pure pornography, he demonstrated in his Temple de Guide, a work
he later regretted.17 The problem of love was raised in his Persian
Letters—but never later. This focussing on love was undoubtedly due
to his great perplexity of mind,18 to his inability to discover forms of
social, political, and religious life in which man could indeed live truly.
Love, monogamous, polygamous, and incestuous, were thus examined
by him. Love as practised in Western Europe was scorned. “ This court
resounds with love: nothing is talked but enraged fathers, deluded
daughters, faithless lovers, afflicted husbands” (P. 87). Marriage is made
intolerable by prohibition of divorce; by tightening marriage, it is really
loosened (P. 117). His description of the role of women in society has
already been mentioned. Against this sordid picture of love and mar
riage in Western Europe, he analyzed polygamous love in the oriental
seraglio. Many letters are devoted to painting the happiness of the hus
band and of his wives derived from the seclusion and isolation of the
harem and its total dedication to love. But even this love does not
stand the test of reality. Jealousy and intrigues annoy the wives, and
disturbing outside influences compel the husband to apply terroristic
methods to harem life. W ith extraordinary psychological insight,
patterned perhaps on Aristotle’s analysis of the techniques of despotic
rule, these arcana are explained by the Chief Eunuch (P. 64, P. 97): the
need for destroying the bonds uniting the women, the playing off of
one against the other, the gradual tightening of controls, the deliberate
increase in their numbers (because it is easier to rule many than few)—
all these techniques break their spirits and make them manageable.
But even these refined techniques are of no avail. The very last letter
(156, added in 1754) of Roxana, the favorite wife of Usbek, announc
ing her suicide, reveals that she betrayed him, never loved him, and be
cause she always longed for freedom, took her own life.
Both of the traditional forms of love—monogamy and polygam y-
are thus found to be wanting; yet there remains a third form, the in
cestuous love of brother and sister. The “ History of Apheridon and
Astarte” (P. 67) is the history of the fulfillment of brother and sister
through love and marriage. It is the only solution that Montesquieu
presents without any qualification and which he does not question.
He later19 expressly remarked that he could not conceive of incest as sin.
(104) Montesquieu
His attitude toward life reveals a deeply felt pessimism. “ Men should
be bewailed at their birth and not at their death” (P. 40); consequently,
“ man has the right to suicide.” “ W hy should I be forced to labour for
a society to which I refuse to belong? W hy in spite of myself should
I be held to an agreement made without my consent?” (P. 76). Perhaps
the deepest influence is that of Montaigne,20 an influence that he him
self acknowledged and which no scholar denies but which appears in
adequately stressed as against that of Locke, Descartes and Male-
branche.
It is this skepticism which made him a conservative. It is this attitude
toward life rather than specific views of the Esprit des Lois which mark
him off from the philosophies as well as from Rousseau. This skepti
cism did not permit him to elaborate any radical solution. He lacked
the faith in the capacity of men to effect and maintain a radically new
society. His suspicion of “ the universal decider,” his rejection of the
“ overzealous” (P. 61), the insight that modern technological weapons
(the bomb) make no longer possible “ upon the earth a refuge from
injustice and violence,” his awareness of the ambiguous character of
progress (P. 106), his insistence on slowness and caution in legislative
changes (P. 138, P. 10 1)—all this makes for a conservative but not
necessarily reactionary attitude toward life. It is this point of view that
exasperated the philosophies who, agreeing with his cultural criticism
could not accept defeat. It is this attitude which prevented him from
accepting any radical solution, any panacea, any utopia, and which
gives the Esprit des Lois its color. The Esprit des Lois does not contain
a specific recommendation for the structure of a good political society.
It suggests a range of possibilities depending upon specific circum
stances, none promising the millennium, but, if applied, they make
possible a government operating with a “ minimum of friction” and,
consequently, being “ more rational” (P. 81).
Montesquieu was thus certainly no radical and, if we view only his
relation to the French scene and the impact he made on contemporary
France, he is certainly a much less progressive influence than were the
philosophes and Rousseau.
Notes to Section I.
1. Printed in London Evening Post, February, 17 5 5 . Reprinted here from F. T .
H. Fletcher, Montesquieu and English Politics iy $ o - i8 00, London, 19 39 , p. 23.
Montesquieu ( 10 S)
Also in Churton Collins, Voltaire, Montesquieu and Rousseau in England, London,
1908, p. 17 7 .
2. In: “ Machiavelli” in Critical and Historical Essays, I, 18 0 -8 1 (Boston and
New York, n. d.).
3. T he biographical sketch is based primarily on Joseph Dedieu, Montesquieu
L ’homme et I’oeuvre, Paris, 19 4 3. L °m s V ian, Histoire de Montesquieu (2nd ed.
by E . Laboulaye) Paris, 1879 , is not too good. Albert Sorel, Montesquieu (translated
by G . Masson), London, 18 8 7, is charming but inadequate.
4. So called because of the cap worn by the presidents. It had the form of the
mortar.
5. Churton Collins, Voltaire, Montesquieu and Rousseau in England, pp. 1 1 8 -
1 77-
6. The extant portions are published in Voyages and in the Laboulaye edition
of Montesquieu's works, V II, 18 3 -19 6 .
7. See Ernst Klimowsky, Studien zur Entwicklungsgeschichte der englischen
Gewaltenteilungslehre bis zu Montesquieu, Konigsberg, 1926 , p. 67, and Sorel,
op. cit., p. 74.
8. See the study by M . A . Cherel, quoted by Dedieu, Montesquieu L ’homme,
pp. 16 8 -16 9 .
9 . T h i s is t h e b u ll Unigenitus a g a in s t t h e Ja n s e n is ts .
10 . H. Carr6 in Lavisse, Histoire de France (Paris, 1 9 1 1 ) , V II I , 17 5 .
1 1 . Cahiers, p. 8.
12 . I consider P. 84 crucial to the understanding of the much interpreted E . I, 1.
This statement is generally interpreted as either meaningless or as indicating
Montesquieu’s relativism. P. 84 shows clearly the exact opposite. Victor Klemperer,
Montesquieu (2 vols. Heidelberg, 1 9 1 4 - 1 5 ) , I, 1 1 4 , has drawn attention to the
central position of justice in Montesquieu’s philosophy.
1 3 . An actual example of such discussion in the “ Responses and Explications
given to the Faculty of Theology about the 1 7 Propositions extracted from The
Spirit of the Laws which the Faculty had censured,” printed in H. Barckhausen,
Montesquieu, UEsprit des Lois et les Archives de la Brede, Bordeaux, 1904, App.
V II, pp. 9 3 - 1 1 7 .
14 . He loved his country seat, La Brede, because “ my money is under my feet”
(Cahiers, p. 12). “ If I know of a thing useful for my nation which, however, would
be ruinous to another, I would not propose it to my Prince, because I am man
before being a Frenchman or, better, because I am a man by necessity and a French
man only by accident” (Cahiers, p. 9). H e considered himself a good citizen “ be
cause I have always been content with the state in which I am . . . have never
envied others” (Cahiers, p. 10).
15 . T he same judgment is passed on the women in Genoa, who, being merely
bats, aspire to be eagles (Voyages I, 138 ).
16 . “ He who attacks revealed religion attacks only revealed religion, but he who
attacks natural religion, attacks all religions of the world.” Montesquieu to
Warburton, in 17 5 4 , on Bolingbroke, in Correspondance de Montesquieu (ed.
Gebelin and Morize) Paris, 1 9 14 , 2 vols., II, 528.
17 . Joseph Dedieu, op. cit., p. 25. 7
18 . According to Dedieu, ibid., p. 25, Montesquieu seems to have been per
plexed until about 17 2 7 .
19 . Pensees et Fragments, II, 368.
20. See Albert Sorel, Montesquieu. Trans, by G . Masson, London, 18 8 7, p. 16 .
I I . M o n te sq u ieu a n d F re n c h Politics
The problem of France during Montesquieu’s adult life was the

problem of a monarchy which, while claiming divine origin and abso
luteness, was incapable of living up to its claims, which was weak and
vacillating, and, being in an almost perpetual state of bankruptcy,
became the prisoner of outdated vested interests.
The political theory of Louis X V was still that of Richelieu1 and
Bossuet.2 To both, the monarchy was divine. But the divinity of that
institution was no longer meant to imply, as it did in Bracton and
almost all medievalists, limitations upon that power. There were none
except those that the monarch’s conscience imposed upon himself.
Divine and natural law were in Bossuet’s terms only a puissance direc
tive, a counsel lacking the puissance coactive, the coercive power.
Bossuet’s formula 'T o u t I’Ftat est en la personne du prince” merely
generalizes Louis X IV ’s alleged slogan L ’Ftat e’est moi. In theory, the
power of the monarch was as absolute as it was comprehensive. This
monarchy set out to destroy all feudal and autonomous powers, for
there is, according to Richelieu, nothing "more dangerous to the state
than diverse authorities on equal terms in the administration of affairs.”
This principle of legal and political equalitarianism was, however, based
on the recognition and strengthening of the traditional social stratifica
tion. "This great kingdom,” said Richelieu, "can never flourish unless
your majesty takes care to keep the bodies that compose it in their
order: The church having the front rank; the nobility second; and the
magistrates, which are at the head of the people, third.” All three
estates were, however, to live off the common people. "Unless they
are kept under by some necessity they will hardly keep within the
bounds prescribed by Reason and Law. . . . They may be compared to
mules which, being used to burdens, are spoiled more by rest than by
labour. . . . But there is a certain point which cannot be exceeded
without injustice, common sense teaching every man there must be a
proportion between the burden and the strength of those that bear it.”
This amiable system did not work properly even under the Sun King.
True, he won his fight with the Fronde, but he failed both to abolish
the political and legal privileges of the nobility and to keep the tra
Montesquieu ( 107)
ditional order of society intact. Hidden behind the glare of Louis X I V ’s
power and prestige two important tendencies, each contradicting the
other, grew constantly: the infeudation of society and the destruction
of the traditional hierarchy of society.
The French monarchy, in perpetual need of money, practised ven
ality of offices on a large scale. This phenomenon was not adequately
understood until Gohring and Mousnier published their respective
studies.3 A “ monarchy tempered by venality” 4 is the type of govern
ment that arose. The offices became private property, and private prop
erty made offices. They could be sold and traded like any commodity
and the prices fluctuated with the business cycle. At the end of Louis
X IV ’s reign, the position of President a Mortier at a provincial Parlia
ment was worth between seven hundred thousand and eight hundred
thousand livres.5 All offices, except the relatively few royal offices, were
traded. New offices were created whenever the fiscal situation required
it. So glutted was the market with offices and so expensive did the high
offices become that, in Louis X I V ’s late period, no buyers could be
found for many of them.6 As a piece of property, the offices could be
inherited or, through the technique of iesignatio in favorem,7 could be
made to remain in the families. Although the law set a minimum age
for certain offices like that of the office of a President a Mortier, young
men, sometimes of only eighteen years, were given special dispensation
to assume them.8
The misuses inherent in such a system are obvious. Already Aristotle
had castigated venality.9 The inflation of the number of officeholders
and the high cost of investment made the administration and judiciary
arbitrary and expensive. The morass of French law, the co-existence of
numerous and conflicting jurisdictions, and the extreme difficulties
created by the various layers of law, were, of course, a fertile ground for
numerous, long, and expensive law suits.10 A fourth estate,11 the gens
de la robe, made its appearance. No longer the fittest but the wealthiest
became officeholders and judges. Richelieu saw the danger to the
monarchy, but he was powerless to act in the face of growing fiscal dif
ficulties.12 The king could not abolish offices, nor could he, as a rule,
depose an officeholder; he could only buy him out.
The vested interests created by venality were enormous. They natu
rally sought protection for their investments. A strong monarchy must,
of necessity, appear to them the greatest danger. Support for this in
(108) Montesquieu
vestment could come only from groups and theories that made the
king subject to effective controls by the privileged. A new theory of
feudalism corresponded to the growing process of infeudation.
But the consequence of that same process, and of Louis X IV ’s egali
tarian policies, was the destruction of the traditional hierarchic struc
ture of society and the entry, on a large scale, of the bourgeoisie into
the ranks of the nobility. Patents of nobility were sold by the monarchy
as early as the sixteenth century.13 The Goncourts, in the opening
chapter of their life of Madame de Pompadour,14 have left us an im
pressive description. “ From Philip of Valois to Louis X V it [the
bourgeoisie] gains everything, buys everything, ascends to everything/'
Parliaments, courts, offices, the judiciary, the administration, the army
(especially artillery, engineering, and supply services)—all is permeated
by the bourgeoisie. “ From counsel to chancellor, the magistracy be
longs to it absolutely." This “ Order of Money" bought offices whole
sale.
Since many of the offices entitled the holder to nobility (all mem
bers of the Parliaments automatically became noblemen), and since
the title of nobility could frequently be acquired with the acquisition
of a nobleman's estate,15 an increasing proportion of the bourgeoisie
acquired the rank of nobility. It may thus be true to say that, during
the ancien regime, France was actually split in two classes only: the
nobility and the commoners.
Cutting across this class division, there existed the innumerable
corporations, each with a life of its own, each out for its particular
interests. “All your subjects," said Segurier to Louis X V I in 1776, in
defense of this system, “ are divided into as many corporations as there
are classes in the kingdom. The clergy, the nobility, the high courts,
the lower courts, and the officials belonging to them, the ministries,
the academies, the fiscal corporations, tradesmen—these are all orders
in the state which one may regard as links in a big chain.16
The institutions which defended the claims of the privileged were
the Parlcments. These essentially judicial organs were, or at least
claimed to be, not only courts but also legislative organs and hence
maintained that they were the successors of the Estates General. Their
claim was that no legislative act had validity without registration by
them and they asserted it by their remonstrances. Time and again
their claim was denied, their refusal to register overruled by a royal
Montesquieu (10 9)
lit de justice; time and again they were dispersed or reorganized. But
with the growing infeudation they advanced “ the most audacious
theories.’'17
The large scale taking over of all offices by the bourgeoisie, which
was already far advanced in the first half of the eighteenth century,
reached its climax shortly before the revolution when it encountered
opposition by the old nobility.18 In 1789, not a single bishop came from
the ranks of the common people.19 The bishoprics and most other
high offices were then again in the hands of the old nobility.
Montesquieu’s politics must be understood in this framework.20 His
sympathies were for a monarchy (V III, 16-20) tempered by a corps
intermediate, by “ intermediary powers” (V. 19 and V III, 16-20) com
posed of the Parliaments, aristocracy, corporations, etc.21 An inde
pendent judiciary, crucial in his system for the preservation of life,
liberty, and property against arbitrary acts, is to be secured by the
venality of the judicial offices (V, 19, 12). His theory of the origin of
feudal rights in France (X XX I) follows closely the germanic and pro-
feudal doctrines. Monarchic government becomes corrupted if it de
stroys the prerogatives of the intermediate powers and privileges of the
cities (V III, 6).
The significance of these statements will become clearer if Montes
quieu’s theory is placed within the conflicting ideologies of the eight
eenth century. Two schools of thought were locked in a bitter strug
gle:22 the one, the these royale, saw the salvation of France in a strong
monarchy, annihilating the intermediate powers and basing itself on
the bourgeoisie; the other, the these nobiliaire, believed France’s re
construction to be dependent upon the recognition of autonomous
powers of the nobility and of the corporations which were to limit the
sovereignty of the king and to act as the guardians of the fundamental
laws of France and of the rights of the citizens.
The issue was first stated in terms of the philosophy of history by
Count Boulainvilliers and Abbe Dubos,23 the former expressing the
so-called Germanic, the latter the Roman view of the origin of France’s
monarchy, the former defending la these nobiliaire, the latter la these
royale.
Fen£lon had already demanded that the monarch share his power
with an aristocratic assembly and Louis X IV had rejected him, Ie bel
esprit le plus chimerique. But Boulainvilliers undertook to supply the
(n o ) Montesquieu
historical evidence for the original and autonomous powers of the aris
tocracy. Feudality is for him as old as is the Frankish monarchy. When
the Franks conquered Gaul, they brought with them from the Teutonic
forests, not absolute monarchy, but a feudal monarchy, a kingship
limited in its very origin by the original powers of the lords. The his
tory of the French monarchy is thus the history of the usurpation of
feudal powers by the monarch. This historic approach is thus similar
to that of Francis Hotman’s Francogallia (1573), a pamphlet written at
the behest of the Calvinist propaganda center in Geneva for the pur
pose of implementing Calvin’s theory that only magistrates, endowed
by positive constitutional law with the right of resistance, could law
fully resist a ruler. Ilotman, therefore, set out to prove that the historic
rights of the French magistrates had been unlawfully usurped by the
monarch.24 Boulainvilliers, however, wrote not a pamphlet but a
learned work in three volumes to defend the strange thesis that while
conquest by the Franks created law, conquest of the feudal powers by
the king did not and could not make law.
Dubos’ book was written for the purpose of destroying “ the new
pretensions of the feudality.” Feudalism for him is a corruption of the
monarchy which, in its origin, had inherited and had continued to
practise the Imperium Romanum. The Frankish kings, therefore, were
officers of the Roman Empire, which, under Justinian, had ceded Gaul
to them. The French kings of the eighteenth century were thus the
successors of Augustus and the feudal lords were usurpers of the royal
powers during the weakness of the monarchy. The truth contained in
Dubos’ thesis is infinitely greater than in that of his opponent. But
either argument, and any such merely historical reasoning, will be
faced with Helvetius' famous question to Montesquieu: “ Ought we
then to inherit all the errors that have been accumulated since the
origin of the human race?” 23
But Dubos’ reasoning led up to the more rational contentions of the
Marquis d’Argenson, of the early Mably and of the Physiocrats, that
is, to the doctrine of enlightened despotism. For d’Argenson26 the
problem consisted in transforming the monarchy into an instrument
of social justice. The monarchy must, therefore, be strong, its power
must be undivided; autonomous and feudal rights must be crushed,
and the monarchy be reoriented toward the third estate. A rational ad
Montesquieu ( in )
ministration of France, her division into districts, boroughs and mu
nicipalities, appeared to him indispensable. Local and regional adminis
trators were to be appointed from lists elected by the communes;
provincial estates, deliberating in one chamber, were to integrate the
absolute monarch and the self-governing municipalities. All internal
tolls and duties were to go with all feudal privileges. Quite logically
d’Argenson came to accept Mably’s socialism and Rousseau’s Discourse
on Inequality. Similar views were expressed by Mably.27 But the philo
sophic basis was found in the Physiocrats’ theory of a completely free
and competitive society held together by an absolute monarch.
Montesquieu opposed these theories of an enlightened despotism,
as his Esprit des Lois clearly reveals. It is true that (X XX , 10) he
seemed to reject Boulainvilliers’ views as a conspiracy against the third
estate, and Dubos’ as one against the nobility'; but in reality, he fol
lowed closely Boulainvilliers.28 He thus identified himself with the
reactionary trend of French politics, that trend which ultimately pro
duced the French revolution. No contemporary of Montesquieu was
in doubt about Montesquieu’s position and his effect upon the scene
of French politics. His Esprit des Lois became one of the bibles of the
Parlements, and, indeed, a kind of handbook of the aristocracy, as
Helvetius,29 Voltaire,30 and Linguet clearly stated. “ As to our aristocrats
and our petty despots of all grades,” wrote Helvetius to Montesquieu,31
“ if they understand you, they cannot praise you too much, and this is
the fault I have ever found with the principles of your work. . . .
Uesprit de corps assails us on all sides; it is a power erected at the
expense of the great mass of society. It is by these hereditary usurpa
tions we are ruled. Under the name of the nation there exist only
corporations of individuals and citizens who merit that title.”
Even Montesquieu’s veneration for England was challenged for the
same reason.32 Helvetius believed that “ balanced power” will only
divide and not unite Frenchmen, and England’s balance of power, if
she indeed has it, will not be able to last. Since Linguct’s33 criticism
centers primarily on the doctrine of the separation of powers, it will be
considered below.
The suspicion that behind the admiration of English institutions
there lurked in reality the defense of feudal privileges was not unjusti
fied. In 1740, Samuel Harding,34 of London, published the Histoire
( ii2 ) Montesquieu
de la pairie de France et du Parlement de Paris by “ Monsieur D. B ”
“ D. B .” was in fact Jean de Laboureur, abbe de Fuvigne, a man who
had been hired by the French peers in the 1660's to carry on research in
support of their political claims.35 He carried on these duties until 1704.
His manuscript was freely circulated during the early Regency but not
printed until 1740. Attached to this work there is a shorter one, Traite
de la pairie d’Angleterre by “ Mr. de G . . . probably one of Labour-
eur's research associates. Here, the English peerage is set forth as a
check on the crown (as Laboureur contends it should be in France),
and consequently, English political institutions used to bolster the
claims of the French aristocracy.
It is then unquestionable that Montesquieu propounded a con
servative solution of France's political problem. But that docs not
make him a reactionary. He is set off from his feudal confreres by his
tolerance, his awareness of the national obligations of the privileged
groups, and his deep doubts about all perfect solutions. These are not
mere ideologies hiding his egoistic class interests. Montesquieu did not
want an office, nor did he aspire to riches. W hile he loved the salons of
Paris, he preferred his country seat. Hclvetius himself, who stayed with
him at la Brede, praised his attitude toward life, his surroundings, and
the peasants.
Besides, although the Physiocratic scheme looked beautiful on paper,
it was essentially utopian. How was it to be realized? Neither Louis X V
nor Louis X V I could possibly arouse the hope that a monarch could
and would have the courage to cut himself loose from all ties with the
aristocracy, to wipe out all privileges, to create economic freedom, to
put the finances on a sound basis, to establish a reorganization of the
administration, clean out the droves, and throw himself into the arms
of the masses of the people. The memory of Louis X IV would have
contributed nothing to make the royal thesis palatable to an intellec
tual, although the romantic distortions of his rule (like those of Na
poleon I) may have made it palatable to politically uneducated masses.
Turgot's short-lived administration proved the utopian character of
the these royale.
It is Rousseau's historic merit to have reduced the these nobiliaire
and the these royale to insignificance and to have put the political
problem on an entirely new basis, that of pure democracy. Montes
quieu was as far removed from the democratic as he was from the
Montesquieu ( 113 )
Physiocratic solution. His own contribution to France’s political prob
lem, honorable as his motives may have been, was unrealistic, and, in
its effect, quite harmful.
Notes to Section II.

1. The Political W ill and Testament of that great Minister of State Cardinal
Duke de Richelieu. London, 1695 (written between 16 3 5 and 1640).
2. Politique tirde des propres paroles de V fieriture Sainte, Brussels, 1 7 10 . (Both
quotations from John Bowie, Western Political Thought, New York, 1948.)
3. Martin Gohring, Die AmterkauRichkeit im Ancien Regime. ("Historische
Studien” N o. 346). Berlin, 1938. A. de Tocqueville, The Old Regime and the
Revolution (transl. by F . Bonner), N ew York, 1856 , pp. l iy f f . drew already
attention to this.
Roland Mousnier, La W n a lite des Offices sous Henri IV et Louis X III.
Rouen, 1947.
4. Mousnier, op. c it., p. 623.
5. Gohring, op. cit., p. 283. Montesquieu sold his office in 17 2 6 for an unknown
price. Before the sale, he was in some financial difficulties. As a consequence of the
sale, he had an income of 2 9 , 0 0 0 livres a year. (Dedieu, Montesquieu, L ’homme,
p. 39.) This would suggest a sales price of about 600,000 livres.
6. Mousnier, op. cit., p. 624.
7. Gohring, op. cit., p. 283.
8. W hen Montesquieu inherited his office at Bordeaux in 1 7 16 , he had not yet
reached the statutory age. He applied and received a dispensation but could
assume his seat while the application was pending (Dedieu, op. cit., p. 9.)
9. Politics II, 1 1 , 12 7 3 b.
10 . Montesquieu admitted that, after twelve years of service as counselor and
president, he had never quite understood the procedure of his own court.
1 1 . Mousnier, op. cit., p. 562.
12 . Ibid., p. 604.
13 . Henri Sê, Economic and Social Conditions in France during the Eighteenth
Century. Trans, by H . Zeydel, N ew York, 1 9 3 1, p. 83.
14 . Edmond et Jules de Goncourt, M adame de Pompadour, Nouvelle Edition.
Paris, 18 8 1, pp. 1- 4 .
15 . See, op. cit., p. 13 .
16. From Martin Gohring, W eg und Sieg der mo demen Staatsidee in Fran k-
reich. Tubingen, 1946, p. 24.
17 . D e d i e u , o p . c i t ., p . 43. See e sp . H e n r y S e e , L ’fi volution de la pens€e politique
en France au X V IIIe siecle. P a ris , 1 9 2 5 , p p . 3 1 6 - 3 4 1.
18. Martin Gohring, Die Frage der Feudalitat in Frankreich am Ende des Ancien
Regime und in der franzosischen Revolution. ("Historische Studien” N o. 247)
Berlin, 1934 , P* 94 *
19. Sê, op. cit., p. 63.
20. Basic is E . Carcassonne, Montesquieu et le probleme de la constitution
Franfaise au X V IIIe Siecle. Paris, 19 27. ,
This book has been savagely attacked by A. Mathiez in Annales historiques de
la revolution Frangaise, 19 27, pp. 5 0 9 -5 13 . Carcassonne’s reply in op. cit., 1928,
pp. 8 3 -9 3 . A. Mathiez thereupon formulated his views about Montesquieu’s posi
tion in his article: "L a place de Montesquieu dans l’histoire des doctrines poli-
(114) Montesquieu
tiques du X V I I I siecle” in op. cit., 19 30 , pp. 9 7 - 1 1 2 ; a brilliant, although rather
overstated case for Montesquieu as a reactionary.
2 1. But his sympathies changed after his visit to England.
22. W e do not discuss here: Helvdtius, who was indifferent to the forms of gov
ernment; Holbach, who largely shared this indifference; the democratic doctine of
Rousseau; the socialist theories of M ably and Morelly; and the pre-Marxist analyses
of Linguct.
23. See Carcassonne, op. cit.; Friedrich Meinecke, D ie Entstehung des flis-
torismus, Munich and Berlin, 19 36 , I, 1 2 5 - 1 9 3 ; A. Mathiez, op. cit. B ’s work is:
Histoire de 1’ancien gouvernement de la France, published in 17 2 7 ; D ’s work:
Histone critique de rcstablissement de la monarchic Franqaise, published in 17 34 .
24. Similar historic pretexts for resistance can be found in the English revolu
tion, where Levellers and Diggers justified resistance by maintaining that the N or
man conquerors had destroyed the germanic rights of the English— a kind of
Robin Hood interpretation of English history.
25. Ilelvetius’ letter to Montesquieu in Oeuvres Completes, Paris, 18 18 , III,
259 -6 7, and in Correspondence de Montesquieu II, 2 1. English translation in
Destutt de Tracy, A Commentary and Review of Montesquieu’s Spirit of Laws.
Philadelphia, 1 8 1 1 , p. 2 9 1 .
26. Considerations sur le gouvernement ancien et present de la France (written in
1 737)” 1 7^4*
27. Parallele des Romanis et des Frangais par rapport au gouvernement, 1740.
28. Best statement to this effect by Dedieu, op. cit., p. 54.
See also Joseph Dedieu, Afontesqnieu et la tradition politique Anglaise en France,
1 9 0 9 , p. 1 58, and Meinecke, op. cit.
29. Op. cit.
30. Voltaire’s criticisms are to be found in: Oeuvres completes (ed. L . Moland)
Paris, 18 7 7 -18 8 5 . X X , 1 - 1 5 . (on Esprit des Lois); X X X , 405-464 (on Esprit des
Lois); X IV , 10 6 -10 8 (on Lettres Persanes); X X V I , 5 0 9 -5 10 (tribute to M .):
X X V I I , 3 1 1 - 3 2 6 (tribute to M .).
3 1. Op. cit.
32. See Dedieu, Montesquieu et la tradition . . . (op. cit.).
33. Esp. in La France plus qu'Angloise, Brussels, 1788, pp. 1 1 1 - 1 2 1 . On Lin-
guet’s criticism see especially Gabriel Bonno, La constitution britannique devant
Vopinion frangaise de Montesquieu a Bonaparte, Paris, 1 9 3 1.
34. See Dedieu, Montesquieu, L ’homme . . . (p. 53).
35. Admitted by Saint-Simon, Ecrits in edits, III, 508. (I owe this reference to
my friend Franklin Ford of Harvard University.)
III. Montesquieu: the Political Scientist
It would be unfair to judge Montesquieu solely as a participant in

the contemporary political struggle. His great contribution is that of a
political scientist who, standing in the tradition of Aristotle, undertook
to analyze governments on a cosmic scale and to derive from historical
observations a system of politics. Let us admit at the outset that this
Montesquieu (115 )
enterprise failed, as it necessarily must. The scope was too big, the task
too huge for his abilities. Promise and performance are not in propor
tion. The facts are frequently wrong, the interpretation often not war
ranted by the facts, the logic often faulty, and the language ambiguous.
Yet with all these reservations, there remains an original thinker, who
uncovered thought structures and historical processes and whose work
prepared the way for, and still nourishes political scientists and
historians. The Esprit des Lois may not be a great book on the level of
the works of Plato, Aristotle, Marsilius, Hobbes, Rousseau, and Hegel,
but it is an extraordinarily stimulating book whose riches have re
mained neglected because of the attention given to one of the most
doubtful of his discoveries: the separation of powers as the instrument
of securing political liberty.
A . SO U R C E S A N D M E T H O D S
i. The arrangement of ‘T h e Spirit of the Laws” —It is generally
agreed that the arrangement of The Spirit of the Laws is difficult to
perceive, if a systematic arrangement can be said to exist in it at all.
A number of arrangements have been suggested;1 we follow largely the
proposal of G. Lanson.2
B ooks I - X I I I The government as such, its essential and gen

eral functions.
I-V III T he types of government, their nature, their
structural principles, the maintenance of these
principles their corruption.
IX -X III discuss the functions of government.
I X and X T he army as the protective force of the state
and of its subjects. W ar.
XI T he protection of the individual and the mean
ing of political liberty. T he English contribu
tion.
X II T he protection of the individuals: security;
property; justice; courts.
X III T he supplies of the government: finances and
taxes.
B ooks X I V - X I X The concept of space. Space and government.

Climate and its influence on
XV slavery;
XVI the relation between the sexes (domestic servi

tude);
X V II political servitude and despotism.
(n6) Montesquieu
X V III-X IX Modifications of climatic influences.
X V III T he soil and its cultivation.
X IX T he general spirit, the morals, and customs of
a nation.
III. B ooks X X - X X V Economics and Religion

XX T h e general theory of the interrelation be
tween commerce, morals, poverty, and the
types of government.
XXI Commerce in history.
X X II Money.
X X III Population.
X X IV -X X V Religion.
IV . B ooks X X V I I - X X V I I I
and X X X -X X X I Fragmentary contributions to:
X X V II the role of time on political institutions; the

Roman law of succession;
X X V III the origin and evolution of the French civil
laws. T h e conflict between Germanic and R o
man law.
X X X -X X X I Origin of the French feudal institutions.
V. B ooks X X V I and X X IX Theory of law and legislative practice
XXVI Positive, natural, canon and civil laws.
X X IX On the manner of composing laws.
This arrangement, even if accepted, solves no problems of interpreta

tion, but may help the student to overcome the initial bewilderment
which is the inevitable fate of every reader of The Spirit of the Laws.
2. The Statement of the Problem—The problem of political philoso
phy, and its dilemma, is the reconciliation of freedom and coercion.
W ith the emergence of a money economy we encounter the modern
state as the institution which claims the monopoly of coercive power
in order to provide a secure basis upon which trade and commerce may
flourish and the citizens may enjoy the benefits of their labor. But by
creating this institution, by acknowledging its sovereign power, the
citizen created an instrument that could and frequently did deprive
him of protection and of the boon of his work. Consequently, while
Montesquieu ( 117 )
justifying the sovereign power of the state, he sought at the same time
to justify limits upon the coercive power. The history of modem
political thought since Machiavelli is the history of this attempt to
justify right and might, law and power. There is no political theory
which does not do both things. The most absolutistic theories (Hobbes
and Spinoza) which, at first sight, reject individual rights, admit them,
however, through a back door: Hobbes, by transforming the sovereign
into a kind of business agent of society with all the power he wants if
he conducts his business well, but with none if he fails to secure order
and security; Spinoza, by his formula that right equals might, permits
any social group that is powerful enough to transform its social power
into right, to change from an alteiius iuris into a sui iuris. Locke, the
protagonist of right and law, felt compelled to admit the prerogative
power authorizing the monarch to act without law, and sometimes
even against it, if and when right and law tend to jeopardize the state.
Only Rousseau made the attempt—a successful one if his assumptions
are accepted—to devise a political society in which might and right
coincide.
Montesquieu did not attempt to solve this dilemma of political
thought because he was convinced of the impossibility of solving it.
He differed from the approach of his predecessors in five respects.
1. There is, he believes, no universally applicable solution. There
are only types of solutions. The reconciliation of might and right must
then be achieved differently in different cultures.
2. The solution depends upon the configuration of space, time and
tradition in each specific country.3 It is thus neither arbitrary nor acci
dental.
3. Even then the solution is not an ideal one. It is at best an approxi
mation.
4. The solution, besides, is not a permanent one. It is subject to
change either by correction or by corruption.
5. The solution must be derived from a scientific analysis of all the
facts at our disposal.
If this statement of the problem is correct, then it is not permissible
to make Montesquieu into a modern positivistic sociologist who was
concerned solely with discovering causal relationships and not with the
classic problem of the best government.4 He had very definite views
(118 ) Montesquieu
about a good government, derived from his belief in an objective
justice.
But a moralizing approach was totally alien to him. “ It is useless/'
he said,5 “ to attack politics directly by showing to which extent it runs
counter to morality, reason and justice. This kind of discourse con
vinces everybody and affects nobody. There will be politics as long as
there are passions not subjugated by laws. . . . The majority of events
occur in such a singular manner or depend upon such imperceptible
and far removed causes that one can hardly foresee them.”
There is little doubt that Descartes, Malebranche, and Machiavelli
were his three major inspirations, all viewed, however, through the
skepticism of Montaigne. Descartes' system he admired; he very clearly
perceived6 that it is the method of Descartes which underlies scientific
analysis. “ W hat makes the discoveries of this century so miraculous are
not the simple discovered truths but rather the methods to discover
them.” 7 The apparent chaos of the phenomena is thus capable of being
rationally understood, the laws are amenable to discovery by reason.
But the Cartesian philosophy admitted error; it admitted that there
may be no correspondence between the subject’s receiving experience
and the objective phenomena of the outside world.
This doubt is further deepend by Malebranche’s influence. Male
branche8 had warned against the overzealous identification of the per
ceiving subject with the stuff which is the object of perception. He
felt that self-love and the desire for new discoveries often lead the
interpreter to identify himself too closely with his object. To Male
branche, most things appear at first sight extraordinary and miraculous
solely because they are not adequately known. Once one approaches
these miraculous phenomena, one understands them “ and is ashamed
at having wondered at them.” Lastly, Descartes and Malebranche pre
vented Montesquieu from accepting any final and finite causes. Their
existence is not denied, but only God can perceive them. God, in turn,
has moved out of the center of the world. He is not responsible for
choses particulieres which can be grasped solely by application of the
scientific method. Consequently, Montesquieu could formulate: “ All
beings have their laws: the Deity has His laws, the material world its
laws . . . man his laws” (I, 7).
It is thus Descartes and Malebranche far more than Locke who
determined Montesquieu's scientific method. But the application of
Montesquieu (119 )
this method to history is probably due to Machiavelli’s and Bodin's
influences,9 who not only in this, but in many specific cases, supplied
Montesquieu with formulations and problems. The Cartesian tradition
induced him to start deductively.10 “ I have laid down the first princi
ples, and have found that the particular cases follow naturally from
them” (Preface). Facts are consequently collected insofar as they are
relevant for the elucidating of abstract principles. These, in turn, are
interconnected. The principles are derived from the “ nature of things.”
W hat is meant by this formula? Are the principles arbitrary state
ments, mere working hypotheses to be discarded if induction proves
them to be untenable? The answer is No. By “ nature of things” is
meant a logical structure of society,11 an ideal type.12 Each society has,
according to him, a specific structure and follows its own inner logic.
The inner logic can be grasped only through the medium of facts. A
type of society (a republic, monarchy, or despotism) is thus not an
addition or an aggregate of facts, but the expression of a structure.
These ideal types are not arrived at by induction, that is by the collec
tion of data and the elimination of irrelevant ones, but by reading into
the historical facts a meaning that illuminates them and reveals their
structural principles. Consequently, each ideal type is held together by
one constitutive principle (republic—virtue; monarchy—honor; aristoc
racy-moderation; despotism—fear). It is this constitutive principle
which integrates society. All phenomena must be interpreted in rela
tion to this principle. Each nation being thus an essential unit, it is folly
to isolate phenomena and to attempt to understand them if they are
not seen in their interdependence and in their relation to the consti
tutive principle. The significance of his approach, its merit and its
dangers, will be seen in the analysis of certain concrete problems which
he discusses.13
The structures are, of course, static. There is still no answer as to
how they emerge and how they change. The problem of social change
occupied Montesquieu; the answer he provided is again quite original
although fragmentary.
3. The Historical M ethod and the Problem of Social C h an g e -
While The Spirit of the Laws contains merely fragmentary contribu
tions to the influence of time upon society (X X V II and X X V III; X X X
and X X X I), there is general agreement that the Considerations form
an intrinsic part of The Spirit of the Laws. The historical laws of
(izo) Montesquieu
change follow from the structurized totality of society. Change of one
element of the structure produces a change of the structure. If it is true,
e.g., that a republic is held together by virtue and is most effective in a
small territory, then the Roman republic was corrupted by its physical
growth.14 The collapse of Rome is thus due to too rapid a geographical
expansion. There thus exists a strict and mechanistic causality.
Second, the forces of history assert themselves sometimes even
against the will of the actors. “The faults committed by statesmen are
not always free; often they are the necessary consequence of the situa
tion in which one finds oneself, and the inconveniences in turn produce
inconveniences."15 There exists, to use the famous term of Hegel, “ a
cunning of reason." When, according to Montesquieu, Henry V III,
by his Act of Supremacy, started the reformation, he did so to
strengthen the royal power against the church. But by doing so, he
unleashed a liberating spirit among his subjects who, in the Revolution,
turned it against royal power.18
The reason why the structures become unbalanced and thus produce
changes lies in the psychology of men. The more power they have, the
more greedy for power they become.17 But since totally unlimited
power is impossible the striving for it produces the counter-trends
which in turn change the structure.18 “ There is in every nation a general
spirit upon which power itself is founded. When it shocks this spirit,
power disturbs its own foundations and thus necessarily checks it
self."19
These may be considered the major principles of Montesquieu’s
historical method,20 and we may hence agree with Meinecke,21 in con
sidering him one of the founders of historism.
More important than the originality of Montesquieu is the evalua
tion of the significance of his method for the problem of social change,
which is the central philosophical problem of eighteenth century
France. England had had her revolution in the seventeenth century.
The bourgeoisie had destroyed outmoded political forms and, after
having merged with the nobility, could, on the basis of the constitu
tion, produce the necessary changes without disturbing the social order
as such. The rest of Europe was still too backward to have any possi
bility for drastic social changes. Only France, where the two traditional
political solutions—the royal and the nobiliar theses—proved totally in
adequate, faced the problem of social change. Here the tension be-
Montesquieu (1 2 1 )
tween the rapidly progressing material culture and the obsolete social
and political institutions made a revolutionary social change inevitable.
This is the essence of Helvetius’ theory and the kernel of his criticism
of Montesquieu's Spirit of the Laws.22 Helvetius could not understand
Montesquieu’s concern with forms of government which, according to
him, were either good or bad, the standard of judgment being their
usefulness. A good government, he said, has yet to be created. The bad
ones simply channel the money of the ruled into the pockets of the
rulers. Helvetius’ agnosticism toward political forms is thus the conse
quence of a radical attitude toward the problems of social change. The
primary aim of men being happiness, all social and political institutions
must be adapted to this goal. Change, therefore, is not the slow and
gradual adaptation of old institutions, but their destruction. As against
Montesquieu, Helvetius believes that the veneration for ancient laws
and institutions is not only stupid but dangerous.23 For him the indi
vidual alone is capable of determining his interest, and the integration
of the various individual interests into a common political organization
is dependent upon their equality through distribution of wealth, labor,
and education.24 To a greater or lesser degree the philosophes shared
these views. It was their conviction that man knows his interests, that
the political and social institutions prevent him from acting according
to his knowledge and that, once these institutions are changed, happi
ness will prevail.
Montesquieu’s historicism and relativism prevented him from ac
cepting any of these statements. The Spirit of the Laws may, in spite
of frequent allusions to reason and justice, be considered as a critique
of rationalism and individualism. It was, to be sure, not the first.
Shortly before him Giambattista Vico had written the first philosophy
of history, based on a rejection of natural law and of the Cartesian
philosophy. That Montesquieu knew of V ico’s work is certain, that he
ever studied it is more than doubtful25 Vico’s Scienza Aruova26 (1725)
treats the problem of change for the first time in history as a sociologi
cal problem, as far removed from metaphysics and theology as from
pragmatism. The subject matter of his work is the totality of material
and non-material culture in its historical development. This totality is
“ the work of man.” He ended the search for cosmic laws under which
social change appeared simply as the result of supernatural forces. The
world of society is the world of human wants and needs, of the conflicts
(122) Montesquieu
between man, nature, and history. Vico undertook to establish the
general trends, which he considered as stages of a comprehensive his
torical process. For Vico, no isolated element can be held responsible
for the occurrence of social change; it is the totality of interrelation
ships between social relations and its superstructures that determines
change. The change is one from a lower to a higher form of society,
but in the very transition to a higher stage there are unfolded the in
herent contradictions of society so that it plunges again into barbarism.
The difference between Montesquieu's mechanistic conception of
historical causality (largely shaped by Descartes' methodology) and
V ico’s theory is striking. There is no doubt that Vico’s book is a
revolutionary contribution to historiography, overshadowing that of
Montesquieu. But Vico remained relatively unknown27 and still is
virtually unknown, whereas Montesquieu's Spirit of the Laws became
a best seller. It is then Montesquieu and not Vico wdio stimulated
historism and sociological relativism. Both approaches, however, have
exercised a dual influence: on the one hand they led to romanticism
and the historical school, on the other, to positivism and Marxism.
B. T H E P R IN C I P L E S O F T H E S P IR IT O F T H E L A W S
i. Law and Society—In the opening statement of The Spirit of the
Laws (I, 1), Montesquieu defines laws generally as “ the necessary re
lations resulting from the nature of things.” This definition has been
held to be either meaningless28 or tautological, expressing either a
complete relativism or the acceptance of an objective standard of
justice. Those who actually read Chapter I and compare it with Persian
Letter No. 8q29 will, I believe, invariably come to the conclusion that
Montesquieu expressed his conviction that justice exists as an objective
rule, and that its validity, therefore, is not dependent upon human
actions. Justice is the supreme criterion of the laws. But since society
“ is far from being so well governed as the physical” world (I. 1), it
followed for him that no human society is capable of fully realziing
objective justice. It is for this reason also that we arrived at our view30
that Montesquieu did not believe in an ideal solution of the conflict
between might and right. If one accepts this interpretation, then his
discussions of the various types of political society are all oriented to
ward finding an approximation to the standard of justice by taking into
account all factors that shape society.
Montesquieu (123)
The impossibility of realizing the standard of justice in civil societies
is due to civil society itself (I, 3). In contrast to Hobbes, Spinoza, and
Locke, the entry of man into civil society marks for Montesquieu the
beginning of a state of war. Man in the state of nature is weak. His
entry into the civil society makes him strong, and it is this newly gained
strength that produces conflict—within the state and between states.
This conception, although it still has all the marks of natural law,
is in our view extraordinarily fruitful. It is here that Montesquieu
stands with Helvetius, Holbach and Rousseau: society itself becomes
an agent of history.31 Consequently the structure of society must be
examined.
2. The Nature and Principle of Government—It is essential for
Montesquieu to distinguish between the nature of governments and
the constitutive principles of the different societies. The “ nature" is
defined in a fairly traditional manner, namely by the number of the
rulers. A republic is governed by the people or a part of it; a monarchy
by a monarch ruling through established laws; despotic government by
a single person ruling arbitrarily. The republic thus comprises democ
racy and aristocracy (II. 1). That this classification is not very con
vincing is obvious, and has often been said. Since in a democracy it is
the people that rule, the most crucial concern of a democracy is the
determination of suffrage (II. 2). In the definition of the nature of
monarchy, his political prejudices mar his scientific objectivity (II. 4).
The term “ monarchy" is arbitrarily defined as rule through inter
mediate powers, the “ most natural" of them being the aristocracy. The
history of England, e.g., proves that a monarchy which destroys aristo
cratic privileges destroys itself. Parlements must, in addition, be the
depositories of royal laws. This chapter has thus to be read in con
junction with the elaborate historical discussions on the origin of
feudalism, and is, in the form of an objective analysis, a simple political
tract against Dubos and the royal thesis. Democracy, aristocracy, and
monarchy are for him “ moderate" forms which are sharply distin
guished from despotism (II. 5).
Quite different from the nature of government is the structure of
society, the ideal type, what he calls the “ principles" of government
(III. 1), and what Jefferson correctly translated as the “ energetic princi
ples."32 These are, for a democracy, virtue; for aristocracy, moderation;
for monarchy, honor; for despotism, fear. The principles are thus the
(124) Montesquieu
“ ought” of the government. A democracy must thus have laws and
constitutions conforming to the principle of virtue, which is love for
the republic, for equality, and sobriety; respect for laws and the acting
according to them (III, 3; IV , 5; V , 2; V , 3). It is thus more the
Machiavellian virtue than Christian virtues. It is in Jefferson’s words
the “ amor patriae,” 33 and implies the same idea of identification of
individual interests and general will that Rousseau made the corner
stone of his democratic doctrine. It is that virtue that Robespierre was
prone to invoke whenever it suited his purpose. Quite logically, com
pulsory “ public employment” in government and army follows from
the principle of democracy but not from that of a monarchy (V, 19).
Quite in line with Rousseau, yet sharply differing from him, equality
(V, 3) becomes, consequently, essential for democracy. This equality
is, however, essentially one of frugality rather than, as with Ilelvetius,
the equal share of abundance. Again (V, 5) the caution inherent in
Montesquieu compelled him to reiterate his general conviction that
a perfect and pure democracy being impossible, only an approximation
to this ideal is attainable, so that perfect equality being impossible and
undesirable, democratic legislation should merely prevent excessive
differences in wealth and private power. This, to him, is quite difficult
(V, 6). For democracy is usually the political form of a commercial
civilization which, however, leads to the “ acquisition of vast riches.”
The corrective is contained in the very nature of commerce which
stimulates “ frugality, economy, moderation, labor, prudence, tran
quility, order and rule.” This is an almost accurate description of the
puritan conception of civil society.
Moderation, as the principle of an aristocratic society (V, 8; III, 2)
is a principle to be applied by the aristocratic ruling class against itself
and, through it, against the people. Self-discipline of the aristocracy is
essential for its preservation; this self-discipline should prevent them
from engaging in commerce, should compel them to abide by the laws
and to chain their pride. The material basis for moderation is the happy
medium between excessive poverty and excessive wealth.
Honor, as the principle of a monarchy (V, 10, 1 1 ; III, 7, 3, 6), is
objectively the respect of the monarch for the laws and the inter
mediate institutions through which his executive power should be exer
cised. Richelieu’s conception of monarchy (V, 10) is thus not that of
monarchy but of despotism. Without nobility, therefore, no monarchy
Montesquieu (125)
can be a true monarchy; monarchy must look to its appearances, as well
as to its laws and intermediate institutions.
Fear (V, 13, 14), the constitutive principle of despotism, is a simple
principle, its end being tranquility. But that tranquility is not peace,
‘‘it is only the silence of towns which the enemy is ready to invade”
(V, 14).34 It is maintained by the army.
These principles cannot be mixed (V III, 21). In view of the later
discussion of the English government, this statement is surprising and
is hardly compatible with his blending of democracy and aristocracy.35
Book V then treats in detail and in the usual haphazard and repeti
tious manner the type of legislation corresponding to the principle of
government. Books V I and V II are special applications of Book V .
In the three approved types of government, laws, in general, should
protect life and property of the citizen. Life and property are best pre
served by rational law and a rational administration. Three types of law
administration emerge: the Kadi justice—Pasha jurisprudence (VI, 2)
—as the one extreme case (for despotic governments); an independent
judiciary applying rigid and fixed rules—the other extreme case (for
republics); and a combination of individual and differentiated creation
of law for particular cases—with the application of fixed rules—for the
monarchy. Despotism, by its very principle, cannot know law. Law
making and its execution are thus one and the same. The closer a gov
ernment comes to a republic, “ the more the manner of judging be
comes settled and fixed” (VI, 3), while a monarchy has to combine
both elements in view of the hierarchic structure of society (VI, 1)
which requires particular laws for the various strata. The dichotom y-
fixed rule and its application—implies, consequently, a division of
functions between legislation (or monarchical power) and the judiciary
(VI, 6). In a monarchy, at least, the independence of the judiciary is to
be secured by the venality of judicial offices (V, 19). His humanitarian
spirit is clearly revealed in his discussion of crime and punishment, his
insistence on moderation and on a fitting proportion between crime
and punishment,30 and his rejection of informers and of torture.
It is my conviction that Book V I contains insights into legal soci
ology which anticipate Max W eber’s famous treatise,37 and which
have found but little attention.38
“ The corruption of each government generally begins with that of
its principles” (V III, 1). Democracy suffers corruption either by ex
(126) Montesquieu
cessive equality or by its total loss (V III, 2). Aristocracy corrupts
through arbitrary use of power (V III, 5), and monarchy by the abroga
tion of the intermediary powers (V III, 6, 7, 8). Despotic government
will destroy itself by its own inner logic (V III, 10), while in all other
types correction can prevent corruption.
All this is a mere repetition and by no means a very logical demon
stration of the value of his own typology. But while the logic is faulty,
the meaning is quite clear. There is a sharp dividing line between
despotism and all other forms of government. There is not and cannot
be a defense of despotism, but all other forms may, provided they
fulfill the conditions set out below, be made to work. But even despot
ism is rationally understandable in backward countries or where climate
makes man accept this form of rule (II, 15).
Montesquieu insists that “ it is natural to a republic to have only a
small territory.39 Otherwise it cannot long subsist” (V III, 16), and for
a monarchy to have a “ moderate extent” (V III, 17). W hile this view
may suit Rousseau’s construction of direct democracy, it hardly follows
from Montesquieu’s own analysis of democratic government. He be
came a victim of his philosophy of history, as expressed in his Con
siderations.
3. External Security—Democracy and aristocracy thus find them
selves in a quandary. “ If a republic is small, it is destroyed by a foreign
power; if it be large, it is ruined by an internal imperfection” (IX, 1).
Consequently, a monarchy is better. But since he was well aware
that such a statement could not possibly stand the test of experience,
he gave the republics another chance: the confederation (IX, 2). Con
federations, without abolishing the internal strength of the republics
derived from smallness, give them external strength through associa
tion. External security is, of course, the business of the army. Generally,
defensive wars alone are justified by the law of nations; an offensive
war only if it is objectively necessary for the preservation of the nation’s
integrity (X, 2). Conquest is permissible but subject to the law of
nature, of reason, to political law, and to “ the law derived from the
nature of the thing itself” (X, 3). As against Grotius,40 who, however,
is not mentioned by name, self-interest of the conquerer and humani
tarian considerations require moderation in the treatment of conquered
people (X, 34).
4. The Concept of Space—(a) Climate. Montesquieu now introduces
Montesquieu (1 2 7)
the factor of space (climate and soil) into the discussion of the nature
and principles of government. If, as he claims, character and passions
vary according to climate, the laws ought to take these external factors
into account (X IV, 1). It is undoubtedly true that Montesquieu did
not invent the idea that climatic conditions had some bearing upon
the structure of society. Bodin in his Six Books of the Republic,41 and
Chardin’s Les Voyages de Chevalier Chardin en Perse et autres lieux
de rOrient had undoubtedly directed attention to the problem. But
if Montesquieu for this reason is to be a plagiarizer, then almost all
scholars are plagiarizes. Montesquieu tried, unsuccessfully to be sure,
to determine scientifically the exact role of the factor of space in politi
cal science. That he did not attempt to derive political conditions
exclusively or even primarily from climatic conditions is clear to every
one who takes the trouble of reading what he wrote. He was not a
geopolitician. In his Pensees et Fragments42 is found the first formula
tion of a theory.
Climate operates more directly on the lower stage of development
than on the higher—a statement that will hardly be challenged. If
history is man’s attempt to control nature, clearly then, in the lower
stage of civilization, the blind forces of nature had a more direct effect
on society and politics than in the higher forms where man could begin
to emancipate himself from them. W hat Montesquieu did not state,
and where Vico had a much deeper insight, is that the increasing con
trol of nature by man is not necessarily accompanied by an increasing
freedom of man, but may result in a relapse into serfdom. But Montes
quieu stated the problem correctly. He was, in spite of his pessimism
and relativism, a believer in justice and thus held to the view that
political freedom ought to be the result of man’s increasing power
over nature. He may be blamed for his lack of realism, but not for his
convictions. It may readily be admitted that the discussion of the
influences of climatic conditions is primitive. He tries to establish a
direct, causal relationship between climate, the physiological condition
of man, his character, and the structure of political society (X IV , 2, 3,
4, 10). He thus sees direct, causal relationships between climate,
slavery, the relation of the sexes, and the forms of political control
(X V -X V II).
(b) Soil-—Climatic influences are modified by differences in the
quality of the soil (XIX). Statements like “ Thus monarchy is more
(128) Montesquieu
frequently found in fruitful countries, and a republican government in
those which are not so" (XIX, 1), are clearly untenable. But other
observations on the relations between the character of the space and the
character of a nation, and, consequently, its political organization, still
have great value—e.g., mountain dwellers and liberty; and the character
of the American space on Indian tribes, etc.
(c) Laws, manners, customs, and the general spirit—Book X IX then
contains an admittedly (X IX, 1) unsystematic attempt at determining
the interrelationships among the principles of government, the “ gen
eral spirit” of a nation, its morals and customs. The general spirit
corresponds to some degree to the V o Iksgeist of the German historical
school. It is the integration of all the various external and internal
elements that shape the character of a nation. It is, as one would say
today, an attempt to develop the principles of a cultural anthropology.
This very conception of an integrated culture naturally strengthened
his conservatism; it made him reluctant to recommend change (X IX,
14), especially change from without by legislation. Change is to be the
result of a process. Laws affect merely the actions of the citizen, but
laws do not exhaust the controls of man’s behavior: manners control
the actions of man (as opposed to citizen), customs regulate the ex
terior behavior of man, manners his internal behavior (X IX, 16). These
various types of social regulations should not be confused, but they are
interrelated and a change of one affects the others (X IX, 21).
One would be disappointed if one were to expect valid generaliza
tions on these interrelationships. Shrewd observations are, as usual,
mingled with quite untenable historical statements.
5. Economics and Religion—Books X X to X X V present such diffi
culties to a systematic analysis that no attempt at it will be made. He
was, indeed, “ carried away by a torrent” (XX, 1) in discussing com
merce, its natural conditions, its influence upon society, and its relation
to political forms and religion. The general rule is: “ A nation in slavery
labors more to preserve than to acquire; a free nation, more to acquire
than to preserve” (XX, 4). The general rule is followed by a general
observation: “ It is not those nations who have need of nothing that
must lose by trade; it is those who have need of everything. It is not
such people as have a sufficiency within themselves but those who are
most in want that will find an advantage in putting a stop to all com
mercial intercourse” (XX, 23). This general principle is implemented
by a number of concrete statements interspersed with the usual his
torical references: such as the need for competition which creates “ a
just value on merchandises” (XX, 8); the desirablity of free trade and
undesirability of monopolistic trading practices (XX, 8), hence the
need for restraint on trade (as the Navigation Act of 1660) in order to
help commerce (XX, 11) .43
There follows suddenly Religion as the subject of Books X X IV and
X X V . The intrinsic connection between “ religion, commerce, and
liberty” is realized in England (XX, 7). To guard himself against the
obscurantists he was careful to insist that he was dealing with religion
“ not [as] a divine but as a political writer. I may [therefore] here
advance things that are not otherwise true” (X X IV , 1). He is, conse
quently, not concerned with the truth or falsity of a religious doctrine,
but with its social and political function (X X IV , 19). He correlates
despotic government and Mohammedanism, and moderate states and
Christianity, Catholicism being more adequate for monarchies, protes-
tantism more for republics (X X IV , 3, 4). W e must forbear to discuss
his sociology of religion in the light of the works of Brooks Adams, Max
Weber, Tawney, but we can readily see that he had, indeed, sociologi
cal insights which, although badly formulated, are quite a testimony
to his sociological method. From what has been said about his charac
ter, it will not surprise that his greatest admiration is for the Stoics
(X X V , 10) and that toleration is demanded as a vital political principle
(X X V , 9).
6. The Impact of Time Upon Political Institutions—W e have al
ready discussed Montesquieu’s historical methods, primarily through
an analysis of his Considerations. Books X X V II, X X V III, X X X , and
X X X I add fragmentary observations which are not related to the rest
of The Spirit of the Laws. Book X X V II deals with the origin and the
changes of the Roman law of Succession. It is quite impossible to see
that this mere antiquarian analysis has any bearing on anything here
tofore discussed. But in Books X X V III, X X X , and X X X I the history
and development and theory of the civil and feudal laws of France
receive a more extended treatment than any other subject of The Spirit
of the Laws, for reasons already stated.
7. The Law and Legislative Practice—In the body of The Spirit of
the Laws there are two books (X X V I and X X IX ) which ought to stand
at the beginning of the work and whose actual place can be explained
(230) Montesquieu
only by the length of time spent on the composition of his work and his
reluctance to change radically the order of his work. Book X X V I dis
tinguishes the following several layers of law: law of nature; divine law
(that of religion); canon law (religious policy); law of nations (civil law
of the universe); general political law (sum of human wisdom); par
ticular political laws; law of conquest; civil law (protection of life and
liberty against attack by other citizens); domestic law (family law)
(X X V I, 1). These layers do not form (as in the Thomistic philosophy)
a hierarchy. There exists rather a division of functions among them
(X X V I, 2), meaning that a particular social phenomenon should be
regulated by a corresponding layer of law and not by a law that is not
related to the phenomenon. Laws of inheritance, e.g., should not be
governed by natural law but by political and civil law. This division
of functions might even cut across a unified social institution. The
family could thus be the object of religious law—namely, as to its form
and nature—and of civil law—namely, as to the consequences of mar
riage (X X V I). One may, with justice, reject the nine-fold division of
laws as arbitrary, although I believe it to have a very good meaning,
but we are compelled to admit the intrinsic soundness of this approach.
W e would, if we could go deeper into the problem, show that Montes
quieu, although not giving us a systematic analysis, yet foreshadows
a dual development in legal science: the legal theory of German ideal
ism culminating in Kant's rigid division of morality and legality,44 and
the sociological theory of law initiated by Bentham. This concludes
the general survey of The Spirit of the Laws, except for Books X I and
X II which are discussed in the following chapter. The understanding
of his work is frequently rendered difficult by the intrusion of many
historical references, the bulk coming from the classics. Ilis scholarship
in the use of sources is decidedly second-rate, even if eighteenth
century standards are applied.45 Many are wrong, others totally irrele
vant, their great number, instead of helping, merely obscure the mean
ing. But the general significance of these books is clear, and the
approach new. The positive suggestions are at least as numerous as the
errors, and the fact that many of his ideas have not been examined
at all is a testimony to discontinuity of modern scholarship. Almost
all attention has been centered on the celebrated Book X I “ Of the laws
that form political Liberty with regard to the Constitution.”
C. L I B E R T Y A N D T H E S E P A R A T IO N
O F PO W ERS
i. The Concept of Liberty—Books X I and X II are merely illustra
tions of his general method and aim : to devise a moderate government
in which liberty can best prevail. It is thus the reconciliation between
might (government) and right (liberty) with which he was concerned.
To this end, the concept of liberty is defined. The definitions and
distinctions are by no means clear and convincing. Political liberty
“ does not consist in an unrestrained freedom. In governments . . .
liberty can consist only in the power of doing what we ought to will,
and in not being constrained to do what we ought not to will” (XI, 3).
This, in turn, must not be confused with “ independence” ; liberty “ is
a right of doing whatsoever the laws permit; and if a citizen could do
what they forbid, he would no longer be possessed of liberty because
all his fellow citizens would have the same power.” Liberty is, there
fore, not “ philosophical” liberty (XII, 2).
But what is it? If we are to take Montesquieu at his word, the con
cept of liberty would be either meaningless or even quite dangerous.
W ho determines “ what we ought to will” and “ what we ought not to
will” ? It is, clearly, not the individual but the law, that is, the govern
ment. Consequently, my whole liberty would consist in doing what
the law requires me to do and doing this not simply under compulsion,
but with my full and hearty approval. Such a concept of liberty would
be identical with that of Rousseau, except for the great difference that
Rousseau’s conception follows logically from his democratic doctrine,
whereas Montesquieu's stands quite unrelated to his system. However,
if we approach Montesquieu benevolently, we shall have no difficulty
in reformulating his conception in such a manner that, without falsi
fying his ideas, it will fit into the system of Books X I and X II. He
rejects “ unrestrained” liberty and criticizes the attempts to define
liberty as the unlimited exercise of one’s choices, including that of
“ wearing a long beard.” In X I, 4, par. 2, indeed, an approximation to
the correct definition of constitutional liberty is achieved. Conse
quently, his emphasis is on restraints by law. Liberty then would be the
freedom to act unless the act is prohibited by law. I have no doubt
that he meant just that, because it is in harmony with his equation of
liberty and security in Book X II. Only in this reinterpretation do Books
(132) Montesquieu
X I and X II have any meaning whatever, because both Books are ex
clusively connected with the laws that restrain liberty46—Book X I with
the making of the laws, Book X II with criminal law as, one is inclined
to say with Franz von Liszt, the Magna Carta of the Criminals. To be
free, thus meant for Montesquieu, as Voltaire put it, to depend on
nothing but the law.
If liberty is the freedom to act unless such act is prohibited by law,
then the character of the restraining laws must necessarily move into
the center of his theory.
2. The Separation of Powers in England47—Laws are made by gov
ernments, more specifically, by the legislative branch of government.
Each government48 thus has three powers: a legislative; an executive
in regard “ to things dependent upon the law of nations” ; and an
executive “ in respect to things that depend upon the civil law” (later
called judicial, X I, 3). Legislative power entails the making and unmak
ing of temporary or perpetual law's; the executive: public security and
the conduct of foreign relations, the declaration of war and peace; the
judicial the administration of criminal and civil law. Liberty is threat
ened if the same person (or agency) concentrates all three or two
powers in his hand.
W hile the legislative and executive can be given permanently to a
person or body, the judicial should be exercised by a jury, meeting only
when required and not to permanent courts; but the judgments should
be fixed and “ conformable to the exact letter of law.” The judicial
power being actually next to nothing (en quelque fagon nu lie), there
remain really the two others.
The executive power should remain in the hands of a monarch, who
should also convene and prorogue the legislature and should veto legis
lation. The legislature, in turn, should be composed of two parts, a
peers' body and one of commons, the Lords vetoing legislation of the
Commons.
“ These three powers would naturally form a state of repose of in
action. But as there is a necessity for movement in the course of human
affairs, they are forced to move, but still in concert” (XI, 6). One nation
has realized this ideal of political liberty—England (XI, 5).
Liberty, therefore, consists in doing what is not prohibited by a law
enacted by a government which realizes the separation of powers;
where the law is made by a legislative body, administered by a separate
Montesquieu (133)
executive, and applied against citizens only by an independent judici
ary.
This idea, as all ideas, has of course forerunners49 and, consequently,
to many Montesquieu appears as a mere plagiarizer. Among the strong
est literary influences may have been that of Rapin de Thoiras,50 who
had summed up the essence of British government in the following
way: “ The respective prerogatives of the sovereign, the lords, and of
the people are there tempered, the one by the other, so that they con
tain each other. At the same time each of the three powers participat
ing in the government can put invincible obstacles against the enter
prises of each of the others or even against all the others in order to
render itself independent/’
Bolingbroke’s definition of the balance of power doctrine may have
been equally influential. In his Remarks on the History of England51
(1730) Bolingbroke had written: “ A King of Great Britain is that
supreme magistrate who has a negative voice in the legislature; and
several other powers and privileges, which we call prerogatives, are
annexed to this trust. The two Houses of Parliament have their rights
and privileges, some of which are common to both, others particular to
each. . . .
“ If the legislature as well as the executive power was wholly in the
King . . . he would be absolute; if in the Lords, our government would
be an aristocracy . . . ; if in the Commons, a democracy. It is division
of powers . . . which constitutes a limited monarchy. . . . If any of the
three . . . should at any time usurp more power than the law gives, or
make ill use of a legal power, the other two parts may . . . by exerting
their strength, reduce this power into its proper bounds. This is that
balance which has been so much talked of. . . . This proposition is
therefore true; that in a constitution like ours, the safety of the whole
depends on the balance of its parts.” It is this “ independent inter
dependence” 52 which according to Bolingbroke keeps the country
going.
Bolingbroke did not invent this theory. He himself says that it was
“ much talked of.” Certainly Locke, Swift, and Sidney, all, in varying
degrees, had shaped this doctrine. Having no antiquarian interests, it
makes but little difference to us who among the many influenced
Montesquieu most directly. Moving in London’s aristocratic society,53
being acquainted with many political actors, listening to the fight be
(134) Montesquieu
tween Walpole and Bolingbroke during the famous Dunkirk debate
in the House of Commons, he is likely to have heard this doctrine ex
plained to him day after day.
The doctrine was certainly an ideology and not even a consistent
one. There was no “ balance of power” and no separation of powers in
England. True, the parliamentary system was not yet fully developed.54
The monarch still had considerable powers. He had his civil list voted
for life, had considerable funds for corruption; he appointed ministers
on his own advice, and army and foreign affairs were still considered
to be subject to his direct control. But the pendulum of power had
swung to Parliament. The King did not and had not vetoed bills, and
his freedom to select ministers was limited by the explicit or implicit
sanction of the House. Indeed, the prestige of Parliament was at its
zenith, while the King was looked upon with contempt, and no ob
jective observer could have failed to see where the true political power
rested—in the oligarchy.
The balance of power between Lords and Commons was equally a
myth. The oligarchy of the Lords controlled a considerable slice of the
Commons. The eighty county members were, in fact, appointees of the
aristocracy, the Duke of Newcastle alone was said to control fifty
votes.55 True, England enjoyed prosperity. But the age of Walpole has
been described as “ mercantile and mean beyond merchandise and
meanness,” and only the reflection that this period is also the age of
Berkeley, Wesley, and Pitt is said to redeem it from total condemna
tion.56 Indeed, corruption rather than any other element provided the
sinews for English politics.
Montesquieu was fully aware of this, as his Notes on England indi
cate.57 “ Corruption has put itself,” he said, “ into all conditions. Money
is here sovereignly esteemed; honor and virtue, little. The English are
no longer proud of their liberty. They sell it to the King, and if the
King would return it to them, they would sell it to him once more.”
A harsher judgment is hardly possible—and yet there is no trace of it
in The Spirit of the Laws.
Linguet,58 who, more than forty years later, went to England to
study Montesquieu’s “ holy trinity” in action, also preferred England
to France, but for opposite reasons: because there were no intermediary
powers and no balance of powers. “ I do not know who was the first
visionary who has dared to say that The Spirit of the Laws is always
Montesquieu (135)
exhibited on the table of the House of Commons at Westminster, as
one exposes the Decalogue in the synagogues to the veneration of the
assembly/'59 He maintained that the principles of The Spirit of the
Laws were destructive of the English constitution. The political power
of England is unified, “ embracing all the individuals of the nation and
excluding every intermediary.” Nor was he blind to the corruption of
England.
How are we to explain Montesquieu’s analysis, contradicted as it is
by his own observations and by the objective facts of English political
life? Part of this distortion was undoubtedly due to his aristocratic
prejudices, but perhaps more to his method: the defect of his approach,
the deductive method and the construction of ideal types. Deduction
necessitated the acceptance of certain abstract general principles from
which concrete phenomena were then logically deduced. The forma
tion of ideal types implied the need for distinguishing relevant and
irrelevent facts, selecting the relevant, and discarding the irrelevant
ones. The selection was, of course, determined by the abstract princi
ples adopted in advance, which were not realistic but ideological ones.
Honor, virtue and moderation do not describe realities. A realistic
analyst may have come to the conclusion that the constitutive principle
of England was money and not honor or virtue. But this fact did not
fit with his conception and was hence relegated into the travel notes.
Yet a second consideration must prevent us from passing so harsh a
judgment. In the first place, in spite of, and perhaps because of, the
rule of money and of corruption, England did enjoy a high degree of
liberty:60 It did possess stability; it had religious toleration; its society
was saturated; and the state interfered but little with its operations.
Besides, Montesquieu’s concern was not primarily with England. It
was the discovery of a constitutional principle which was applicable
wherever moderate governments existed, and which to him was the
sole means of assuring political liberty.
Therefore, we cannot discard his principle merely because the his
torical material which he employed was inadequate or wrongly inter
preted. W e have to examine the intrinsic validity of the doctrine of
the separation of powers.
3. Montesquieu’s Conception of Separation of Powers—English
political thought was dominated by Locke. Much of Montesquieu’s
analysis is directly influenced by him.61 But Locke had no doctrine of
(136) Montesquieu
a separation of powers. He knew and, for the first time62 in the history
of political thought,63 distinguished functions of the state's power,
and defined their role and relationships. Nor did he develop a balance
of power theory. The legislative power enacts the general rules64 (stand
ing laws) and since the laws are general and the legislature is not always
in being, a permanent executive power is necessary. This division is,
besides, desirable because men are “ apt to grasp power," and a legisla
ture which also controls the executive may use the combined power
for private advantages. Since states live in relation to each other in a
state of nature which is not capable of being governed by standing laws,
a federative power exists which is the power to protect the external
security of the state. But all three powers, even the legislative, stand
at the service of the people and “ thus the community perpetually re
tains a supreme power of saving themselves from the attempts and
designs of anybody, even of their legislators, wherever they shall be so
foolish or so wicked as to lay or carry on designs against the liberty and
properties of the subject." The power of the state is thus unified in the
people. Popular sovereignty is the actual or potential force that unifies
the state which, for convenience, divides its functions. Within the di
vision, moreover, the parts are by no means equal. The legislature can
always resume (153) the executive and federative powers, for the legis
lature “ in a constituted commonwealth is supreme." But where a
distinction between legislative and executive power is made, and where
action for the good of the commonwealth is necessary, then the holder
of the prerogative can act “ without the prescription of law and some
times even against it" until the legislature convenes and can act. One
may thus say that Locke knows four powers. This is no separation of
powers and no balance of power theory. There is, in Locke's theory,
always one agent authorized to act: the king, as the holder of the pre
rogative; the legislature, as the elected organ of the people; the people
directly (although Locke does not and cannot specify how) if they feel
their natural rights to be threatened.
Montesquieu differs radically from Locke, not only in the doctrine
of the origin of the state, but more specifically in the definition of the
separation of powers and the role attributed to it. It is he, and not
Locke, who must be called the father of the doctrine. In Locke, the
executive power means more and less than what we understand by it
today. Less—in that foreign relations are excluded; more—in that
Montesquieu (1 37 )
executive and judicial powers are merged because both are conceived
solely as the application of general laws to specific cases.65
Montesquieu, however, delimits the executive power from the ju
dicial and gives it, in quite a modern fashion (although not foreseeing
its positive aspects) the dual function of maintaining external and in
ternal security.66
These three powers are, indeed, separated. It is true that Montes
quieu does not use the word separation, but division. But the meaning
is clear 67 It was his separating of powers that made his theory’ original.
Their rigid separation is, of course, not incompatible with their inter
connection which is provided for by Montesquieu, but only in a nega
tive manner so that one can always check the other 68 But in spite of
this interconnection, the separation of the three powers and the equal
weight given to the legislative and executive powers stand out clearly.
W hy did he advocate it? The answer is clearly given in X I, 4. Ac
cording to him, power can be checked only by power—a statement
with which few will be willing to quarrel. It is not ideologies and be
liefs that can check power but only a counter-power. In this, he applies
Cartesian principles and stands in the tradition of Spinoza, who saw
no way of limiting the state’s absoluteness (which was the logical con
sequence of his assumptions and of his geometric method) except by
a counter-power through his famous formula that right equals might.
Thus accepting the sociological basis of the separation doctrine, we
must necessarily ask whether the doctrine as such fulfills and can ful
fill its promise to be an instrument of checking power. It can live up to
its promise only if the three (or two powers) are not only legally and
organizationally, but also socially, separate, i.e., different social groups
dominate the different powers. But what possible guarantee of free
dom can there be in separate powers if all three are controlled by one
group? That objection has already been raised by Bentham.69 Montes
quieu was not completely blind to this objection, because he, indeed,
although inadequately, related the three powers to social groups. To
him the monarch, who was to have the executive power, represented
social interests different from those of the legislature; the legislature, in
turn, composed of two houses, was to represent the aristocracy ajid the
bourgeoisie respectively; while the judiciary’, being “ en quelque faqon
n u lle” was to represent everybody, and hence nobody, since the judges
ought to be the accused peers.
(138) Montesquieu
The constitutional principle of separate powers is thus implemented
by the sociological principle of balancing social forces. TTiis insist
ence on the balance of social forces, manifested in separate political
powers, raises the obvious question of the locus of sovereignty in the
state. Is the sovereign power fragmentized and what happens if the
three powers do not agree? To Montesquieu the answer is simple:
They must agree. Political change can thus come about only by a
“ move in concert” (XI, 6).70 Sovereignty rests, therefore, in the com
posite of the three powers. The need for action is subordinated to the
need for agreement among the three powers. This had not always been
his position. In the Persian Letters (103) he had stated more realisti
cally: “ Authority can never be equally divided between the people and
the prince; it is too difficult to maintain an equilibrium. Power must
diminish on one side while it increases on the other, but the advantage
is usually with the prince as he commands the army.” Now his con
cern was far more with the security of the person than with the need
for government action. This agreed with his general attitude toward
legislative change.
To the security of the individual he therefore devoted the entire
Book X II, which examines criminal law in its role of the Magna Carta
of the citizen, and contains ideas that directly affected American con
ceptions of high treason.
D. M O N T E S Q U IE U A N D C O N S T IT U T IO N A L IS M
The effect of Montesquieu's Spirit of the Laws on modern consti
tutionalism has been and still is deep and is, perhaps, still growing. His
influence was either a direct one (as in the United States) or came to
Europe via the United States (as to France), or was transmitted
through his interpretation of the English constitution (as in Ger
many).
There is little doubt that Montesquieu was widely read in the United
States. Spurlin's71 investigations have shown that many newspaper
articles contained lengthy extracts, that clergymen, patriots, college
professors, and law students used and quoted the book, that Samuel
Adams, Charles Carroll, John Marshall, Jefferson, Madison72 all knew
and used it. Yet it would be premature to draw from the wide dis
semination of Montesquieu's ideas the inference that they shaped de
cisively either the thought of the American constitution-makers or the
Montesquieu (139)
structure of the constitution. The decisive influence on the constitu
tion was probably the experience of colonial government, which al
ready supplied a pattern of balancing and separate powers; but for this
very reason Montesquieu’s theoretical justification for what the colo
nists had learned by experience was doubly welcome. Their direct
experience was of course interpreted in the light of other prevailing
ideologies insofar as they agreed with their experience. It is difficult to
allocate specific roles to specific ideologies. Locke’s theory comes, of
course, first in significance.73 Harrington’s republicanism, his demands
for the elective principle, the short term of office, popular approval of
constitutional amendment, the use of the ballot, etc., must obviously
not be forgotten.74 Yet if it is true, as we tried to show, that it is Mon
tesquieu, and Montesquieu alone, who developed a genuine doctrine
of separate powers, then it is he more than anyone else who expressed
and helped to shape the American constitutional doctrine and prac
tice. This judgment may not go unchallenged primarily because of Jef
ferson’s critical attitude toward Montesquieu. Jefferson apparently did
not think too highly of Montesquieu’s version of the separation doc
trine. It is strange, and Professor Chinard drew attention to this fact,75
that while Jefferson abstracted many passages of The Spirit of the
Laws, he did not even mention the most famous Book X I. That may,
of course, either mean that Jefferson was already familiar with the doc
trine of separate powers or that he did not attach any significance to it.
The latter may perhaps be accepted as more likely in view of Jeffer
son’s conception of the relation between the three powers. Chinard70
reports that when Lafayette showed Jefferson his draft of the Declara
tion of the Rights of Men, listing the executive, legislative, and judicial
powers in that order, Jefferson reversed the order and put the legis
lative power first. This act betrays more than mere familiarity with
Locke, it exhibits rather a very clear conception that the doctrine of
separate powers, as developed by Montesquieu, had definite anti
democratic implications, designed to check the power of the elected
representatives. It was, however, for this very reason that Madison ac
cepted it,77 and that it became American constitutional practice. Jef
ferson’s rejection of Montesquieu’s separation theory may also be due
to the influence of Destutt De Tracy, whose Commentary and Review
of Montesquieu’s Spirit of Laws he helped to translate from Destutt’s
manuscript. Destutt stressed, in contrast to Montesquieu, the unity of
(140) Montesquieu
the national will; he disparaged the degree of liberty enjoyed by Britain
under the alleged rule of separate powers, and compared the English
constitution unfavorably with the political situation in the United
States.
Montesquieu’s political conceptions had, therefore, the most direct
effect on constitutionalism, that is, on those doctrines and practices
that are concerned with restraints on power rather than with the
direction and utilization of power for specific social ends, doctrines that
ultimately attempt to dissolve all political power into legal relation
ships. But he had practically no influence on democratic doctrines.
This becomes still clearer when his reception in France and Germany
is studied.
Art. sixteen78 of the Declaration of the Rights of Men of 1789 is
shaped by the American79 constitution rather than directly by Mon
tesquieu.
The Constitution of 1791 (Title III, art. 3-5) expressed the principle
clearly and unmistakably. So did the Constitution of the year III (1795,
art. 148). In all three cases, a deliberate attempt was made to avoid the
introduction of English parliamentary institutions,80 to make the min
istry independent of the legislative body but dependent upon the
executive. Art. 148 of the Directory Constitution consequently pro
vided: “ The Directory appoints the ministers and dismisses them when
it judges it expedient.” This trend was continued in the constitutions
of 18 14 ,18 30 and 1848—and in each case it was an anti-democratic con
ception that led to the introduction of this principle.
In Germany, Montesquieu shaped the constitutional theory pri
marily through his faulty analysis of the English constitution. German
liberalism adored English political institutions, but saw them almost
exclusively through Montesquieu’s eyes.81 The many Germans who
traveled to England to study politics used Montesquieu as a kind of
Baedeker of English politics82 and, with Montesquieu, came to regard
England not as a model of parliamentary democracy but as the incar
nation of a constitutional monarchy. Only Gneist finally succeeded in
destroying this misconception. It was again the anti-democratic wing
of German liberalism that was influenced by Montesquieu because it
was pre-disposed to this theory. No single political theorist was per
haps more responsible than he for the German conception of the
Rechtsstaat, that theory which is indifferent to the content of the law,
provided it is enacted as a general abstract rule and is administered by-
independent courts, in which the law is completely divorced from the
political structure of the state. It is that theory that best expressed the
collapse of German liberalism, its abandonment of democracy and its
sole concern with protecting its interests in a monarchy in whose im
perialist exploits it gladly participated.83
The constitutional doctrine, emerging from the theories of Montes
quieu and Condorcet,84 combined with the economic liberalism of the
Physiocrats and Adam Smith, led to the following conception about
the role and structure of the state.
1. The state should interfere as little as possible with social life.
2. Whatever social changes are required can be made only through
legislation.
3. Legislation means the enactment of fixed, abstract, general rules.
4. Legislation is the monopoly of the legislature.
5. Administration is not the agent of social change, it is nothing but
the concretization of general rules, their application to concrete cases.
6. The judicial function is a logical one. The judge is merely the
mouthpiece of the law.
The consequences of this doctrine were far-reaching and the influ
ence of Montesquieu on this development has been stressed by many
writers.85
The extreme rigidity with which these conceptions were executed in
practice is realized but inadequately. The French Revolution (Decrees
of August 16 and 24, 1790), consequently, forbade to the courts any
interpretation of the law; if they had doubts they had to apply to the
legislature, the refere legislatif. This function was, in 1791, taken over
by the Tribunal de Cassation, a body of the legislature (Constitution
of 1791, title III, ch. V , arts. 19 and 21). It was formally abolished only
in 1828. Frederick II of Prussia, by a Decree of April 14 ,178 0 , forbade
interpretation of the laws; and Joseph II of Austria, in Art. X III of the
Code of 1786, introduced a referd legislatif if the judges were in doubt
about the meaning of a law. Feuerbach was probably the author of the
Bavarian Instruction of October 19, 18 13, forbidding officials and
scholars to write a commentary to the Bavarian penal code.
The profound influence of Montesquieu’s theory about the legisla
tive monopoly of the legislature and the mouthpiece character of the
law are equally striking in English jurisprudence and in the Federalist,
(142) Montesquieu
and is still, perhaps, if not the prevailing, yet a very dominant point of
view of jurisprudence and political science.
W hile it is easy to criticize the exaggerations of this theory, one
should never forget its enormous positive significance: the inadmis
sibility of retroactive legislation as the logical consequence of the gen
eral character of law; the rigid requirement that each activity of the
state interfering with life and liberty must prove itself permissible; and
the need for precision in legal enactments, thus securing the maximum
of calculability. But the exclusive concentration of the constitutional
doctrine on restraints on power led to a total neglect of administration
as the major instrument of social change. The conception that adminis
tration is the primary instrument for the utilization of political power
for social purposes is still leading an uphill fight against Montesquieu’s
influence.
Modern political science must emancipate itself from the dead
weight of the separation of powers doctrine which, much against Mon
tesquieu’s conception, has been transformed into a dogma. Montes
quieu demanded the separation of powers merely because he believed
that it alone could enable a counter-power to check power, so that a
maximum of liberty could be assured. It is not the constitutional form
that stands in the center of his theory, but its social substructure. No
one was less inclined than Montesquieu to make a fetish of the con
stitution.
W hile the independent judiciary can be considered the irreducible
minimum of the doctrine of separate powers, the separation of ad
ministrative and legislative functions not only does not guarantee
freedom, but hampers the utilization of the state’s power for desired
social ends. The power of the state is unified while a division of labor
may and always will lead to a distinction between various functions of
the state, based on expedience and not on dogma. Liberty is not
threatened by legislative activity of the administration but by such a
structure of society that makes the rise of contending political forces
impossible or difficult. A pluralistic social structure and a flexible multi
party system are far more important to liberty than the monopoliza
tion of legislation by the legislature and the reduction of the adminis
trative power into a law-enforcing agency. The threat to liberty, in
herent in the ascendance of administration, cannot be curbed by cur
Montesquieu (1 43)
tailing administrative activity but by subjecting it to parliamentary
control and assuring popular participation in administration.
Montesquieu had changed his conception after a study of English
political institutions. He would equally have changed it after a study of
a mass democracy in action.
Notes to Section III.

1. H. Barckhausen, Montesquieu. L ’Esprit des Lois et les Archives de la B rede,
Bordeaux, 1904, pp. 1 0 - 1 1 . T he material of the Spirit of the Laws is here grouped
around five questions and five answers.
H. Barckhausen, Montesquieu. Ses Idees et ses oeuvres d’apres les papiers de la
Bredc. Paris, 1907, (pp. 264-265). There, he develops a more sophisticated and
quite convincing scheme.
Lawrence Meyer Levin, The Political Doctrine of Montesquieu’s Esprit des
Lois. Its Classical Background. N ew York, 19 36 , p. 4. A very formalistic order is
proposed there.
George Sabine, A History of Political Theory, New York, 19 3 7 , P- 55^» whose
judgment can be trusted, fails to discover more than a purely formal arrangement.
2. Montesquieu. Paris, 19 3 2 , pp. 5-7.
3. Similar statement in Aristotle, Politics, IV , 1 1 1296a.
4. This is the thesis of the excellent doctoral dissertation of E . Durkheim,
Montesquieu: Sa part dans la fondation des sciences politiques et de la science des
societes (1892) (trans. from the Latin) in Revue d’histoire politique et constitu-
tionelle, I, (19 37) pp. 4 05-46 3, esp. p. 4 2 1 . 1 rather follow C . E . Vaughan, Studies
in the History of Political Philosophy before and after Rousseau, 2 V ols. Manches
ter, 19 39 . I, 255.
5. In “ De la Politique” printed in Melanges inedits, p. 15 7 , written in 17 2 2 or
17 2 3 . I translate the passage a little freely.
6. Compare the careful study of E . Buss “ Montesquieu and Cartesius” in
Philosophische Monatshefte, IV (18 6 9 -70 ) 1 ; G . Lanson, Etudes d'histoire lit-
teraire, Paris, 1929, pp. 84-90, and Klemperer, op. cit., in many places.
7. Buss, op. cit., p. 1 1 .
8. Recherche de la v 6 rite. (De l’imagination, Part II, C h. V and V I.) On Male-
branche’s influence on Montesquieu see Ilum e, An Inquiry concerning the Prin
ciples of Morals, sect. I ll, part II (II. D . Aiken, ed.) Hume’s Moral and Political
Philosophy (“ Ilafner Library of Classics” ) N ew York, 1948, p. 196.
9. E . Levi-Malvano, Montesquieu e Machiavclli, Paris, 19 1 2 , and Meinecke,
op. cit., p. 13 3 . The book by M arc Duconseil, Machiavel et Montesquieu. Re-
cherches sur un principe d’autorite, Paris, 19 4 3, is worthless. T he author himself
(p. 15) does not claim to be objective.
10. Durkheim, op. cit., p. 453; Meinecke, op. cit., p. 128.
1 1 . Durkheim, op. cit., p. 455.
12 . Fundamental: Ernst Cassirer, D ie Philosophic der Aufklarung. Tubingen,
i9 3 2 , pp. 17 - 2 8 , 280-6, 325.
13 . 1 should like to remark here that many of these methodological insights are
to be found in Pufendorf, whose significance as a social scientist has never been
(144) Montesquieu
properly appreciated. (M . knew Pufendorf’s work well.) T he Elementorum Iuiis-
prudentiae Universalis and the D e Officio Hominis et Civis iuxta Legam Naturalem
do not only anticipate the Physiocratic theory but also much of the sociology of
Montesquieu. P. is concerned with the factual validity of law and its relation to
property, contract, family, and other social institutions.
14 . Considerations, ch. IX , p. 18 5.
15 . Ibid., ch. X V I I I , p .3 7 6 .
16 . "D e la Politique,” op. c it., p. 158 .
1 7 . Considerations, ch. X I, p. 2 19 -2 2 0 .
18. Ibid., ch. X X II, p. 460.
19 . Loc.cit.
20. He also formulated a cyclical theory (P and F I, p. 1 1 4 ) : barbarism— con
quest— consolidation— conquest— consolidation, beginning corruption— dissolu
tion. But I cannot see that he ever used the cyclical theory' in any relevant manner.
2 1 . Op. cit.
23. D e Vesprit, particularly Discourse III, ch. X X X , and Discourse II, ch. X V
and X V I I . London, 17 7 7 .
24. D e l'h omme, II, 1 1 9 . (Section V II , ch. 1).
25. See Vaughan, op. cit., I, p. 253, for a discussion.
26. I use M ichelet’s edition, Paris, 18 5 5 , 2 Vols.
27. Except for his political influence on Italian nationalism, on Hegel, and neo-
Marxism.
28. T he controversy is discussed by Vaughan I, 258, and Hume, op. cit.
3 1 . On the significance of this idea which Rousseau fully developed see Ernst
Cassirer "D as Problem Jean Jacques Rousseau” in Aichiv fur Geschichte der Phi
losophic, V ol. 4 1 (19 32), p. 2 10 .
32. Jefferson’s Commonplace Book (ed. by Gilbert Chinard). Baltimore and
Paris, p. 259.
33. Op. cit.
34. One is here reminded of Spinoza’s famous definition of peace which he does
not want to define as the mere absence of war. Tractatus Theologico-Politicus
(1670), V , 2.
35. This point well made by W alter Struck, Montesquieu als Politikei. (“ His-
torische Studien” No. 228), Berlin, 19 33.
36. For Bentham ’s criticism see Bowring edition, I, 3 1 1 , 383, 3 9 1.
37. Only Pufendorf has made equally important contributions.
38. Except for Eugen Ehrlich, "M ontesquieu and Sociological Jurisprudence,”
Harvard Law Review, 1906, V ol. 29. I have discussed the social function of the
rational rule in m y Behemoth: The Structure and Practice of National Socialism
2nd ed. New York 1944, pp. 4 40 -52.
39. On the significance of this for Jefferson, see Commonplace Book, p. 267,
and Federalist, No. IX .
40. D e lure Belli et Pads, Bk. I ll, ch. I V - V I I I .
4 1. V , 1.
42. II, 3 6 1. Similar formulation in Cahiers, p. 99.
43. The following works deal with Montesquieu’s conception of economics:
Charles Jaubert, Montesquieu dconomiste, Paris, 1 9 0 1 ; Palgrave’s Dictionary of
Political Economy (ed. H. Higgs) London, 19 2 3 -2 6 , V ol. II, pp. 80 9 -8 10 ; C . de La
Montesquieu (145)
Taille-Lolainville, Les idees cconomiques et financieres de Montesquieu, Paris,
1940; and Fletcher, op. cit., (on Adam Smith and Montesquieu).
44. “ The influence of religion proceeds from its being believed; that of human
laws, from their being feared” (X X V I, 2).
45. A careful analysis of Montesquieu’s use of classical sources has been made
by Levin, op. cit. He quoted what suited his purpose and did not mention what
was counter to his views— demonstrating one of the vices of the deductive method.
\V . Oncken, Das Zeitalter Friedrichs des Grossen, Berlin, 1 8 8 1, V o l. I, 457,
asserts that The Spirit of the Laws shows no trace of 20 years’ preparation. V o l
taire (op. cit.) objected to the arbitrary use of sources and to the acceptance of the
most incredible fables.
46. This re-interpretation had already been performed by the influential Genevan
De Lolme (T. L . De Lolme, The Constitution of England, London, 1790 , pp.
4 5 1 seq.) who, a great admirer of Montesquieu, saw the inadequacy of his defini
tion of liberty. See Fletcher, op. cit. De Lolm e’s book was extremely influential on
the continent.
47. N o adequate study of the separation of powers and of mixed government
exists. T he two doctrines are, of course, not identical. But they merge imperceptibly
in modern history. T he best discussion, although confined to the constitutional
problem is that by R . Carri de Malberg, Contribution a la theorie g6 nerale de
V etat, 2 Vols. V ol II (Paris, 1922), pp. 1 - 1 0 8 . A good survey of the problem is
Carl J. Friedrich, Constitutional Government and Democracy, Boston, 19 4 1, pp.
17 0 -18 6 , from whom, however, I differ.
48. He discusses only “ moderate” governments, not “ despotic” ones.
49. These are discussed among others by: Joseph Dedieu, Montesquieu et la
tradition etc., Ernst Klimawsky, op. c it.; and W alter Struck, op. cit.
50. Dissertation sur les Whigs et les Tories, 1 7 1 7 . He was a French refugee who
was thought highly of by Voltaire and Guizot. See Klimowsky, op. cit., and Eugene
d ’Eichthal, Souverainte du peupie et gouvemement, Paris, 189 5, P* 1 1 4 - This *s a
most important book.
5 1 . W orks (a new ed. London, 1809). II, 18 8 -18 9 .
52. So named by W alter Sichel, Bolingbroke and his Times. London, 1 9 1 2 ,
p .3 3 2 .
53. Samuel Shellabarger, Lord Chesterfield, N ew York, 19 3 5 , p. 138 .
54. Basil W illiam s, The W hig Supremacy. Oxford, 19 39 , pp. 1 5 - 3 2 .
55. The Cambridge Modern History. V I (1907), p. 4 1.
56. Ibid. p. 40.
57. In Laboulaye edition, V II, 18 3 - 19 6 , and I, 225.
58. La France plus qu’Angloise, Brussels, 1788. Other comments of Linquet on
Montesquieu are to be found in Bonno, op. cit. On the significance of Montes
quieu’s travels for the formation of his political theory see Dedieu, Montesquieu
et la tradition, pp. 1 3 1 - 1 5 9 .
59. Op cit., p. 1 16 .
60. This also Montesquieu expressed in his Notes on England.
6 1. See the detailed analysis by Dedieu, Montesquieu et la tradition, pp. 1 3 2 -
191.
62. N o doctrine of separation of powers is contained in Aristotle’s famous dis
tinction between deliberation, magistracy, and judicial activity (Politics, IV , 14,
(146) Montesquieu
1298). A. was concerned with the distinction between the various activities of the
state organs, but not with an apportionment of their functions, nor was he opposed
to an assembly which legislated, administered, and administered justice. See Carr6
de Malberg, p. 2; Eichthal, p. 10 5.
63. But not in political practice. Crom well’s Instrument of Government, (16 53)
did clearly distinguish legislative and executive power.
64. The Second Treatise of Civil Government, X II, 14 3 - 14 8 ; X III, 14 9 -15 8 ;
X IV , 1 5 9 - 1 6 1 .
65. Erich Kaufmann, Auswartige Gewalt und Kolonialgewalt in den Vereinigten
Staaten von Anierika. Leipzig, 1908, p. 32, maintains that this fully corresponded
to actual British practice.
66. This is by no means clearly said. T h e definitions do not quite fit the state
ment and, consequently, opinions are divided. See Dedieu, Montesquieu et la
tradition, pp. 17 7 - 18 0 , as against H. Barckhausen, Montesquieu. Ses idees et ses
oeuvres d’apres Jes papiers de la Brede, Paris, 1907, pp. 2 6 7-272. T he difficulty
consists in reconciling X I, 6, par. 1 with par. 2. In par. 1, executive power is defined
as the power to act in “ things dependent on the law of nations” — that is merely
Locke’s federative power; in par. 2, public security is introduced. If we were to
accept merely par. 1, M . would not recognize administrative functions at all. This
seems inconceivable especially for a French President of a Parlement who certainly
knew the significance of administration. X I, 6, par. 42, and others indicate the
correctness of the above interpretation.
67. I follow here Carre de Malberg, p. 3.
68. Op. cit., p. 43.
69. For a discussion of Bentham ’s critique of Montesquieu see £lie Ilalevy. The
Growth of Philosophic Radicalism (Transl. by M . Morris), London, 19 3 7 , pp.
408-9.
70. Many, and particularly German, theorists maintain therefore that Montes
quieu destroyed sovereignty. See especially M ax Landmann, Der Souvcramtatsbe-
griff bci den franzosischen Theoretikcrn von Jean Bodin bis auf Jean Jacques Rous
seau, Leipzig, 1896, pp. 1 1 0 - 1 1 9 .
7 1 . Paul M . Spurlin, Montesquieu in America. Baton Rouge 1940; also: Albert
Bushncll Hart, American History' as Told by Contemporaries. New York 1899,
V ol. II, pp. 144. Merle Curti, The Growth of American Thought. New York 194 3,
p. 12 3 . Fernand Cattelain, Etude sur Vinffuence de Montesquieu sur Ies constitu
tions Americaincs. Bcsangon, 19 27. II. Knust, Montesquieu und die Verfassungen
dcr Vereinigten Staaten von Amerika. M unich and Berlin, 1922.
72. W illiam S. Carpenter, The Development of American Political Thought.
Princeton, 1930, p. 84.
73. Robert M . M aclvcr, “ European Doctrines and the Constitution” in The
Constitution Reconsidered (ed. by Conyers Read). N ew York, 1938, pp. 5 1 - 5 2 .
74. Russell Smith, Harrington and his Oceana. Cambridge (England), 19 14 ,
chapters V II and V III.
75. Gilbert Chinard, Pensees choisies tirees du Commonplace Book de Thomas
Jefferson, 1925.
76. Gilbert Chinard, Thomas Jefferson. Boston, 1929, pp. 2 3 2 -2 3 3 .
77. Carpenter, op. cit., p. 84.
78. Art. 16 : “ Toute socic'tc dans laquelle la separation des pouvoirs n'est pas
determinee, n’a point de constitution.” On the direct influence of the United
States constitution see Eichthal, op. cit., p. 144.
Montesquieu (1 47 )
79. But Montesquieu was well known to the leaders of the revolution. See the
statistics on reading by Harold T . Parker, T he C ult of Antiquity and the French
Revolution, Chicago, 19 3 7 , PP-
80. Carr£ de Malberg, op. cit., p. 38-40 ; Mathiez, op. cit., p. 1 1 2 .
8 1. Franz Schnabel, Deutsche Geschichte im neunzehnten Jahrhundert. Frei
burg, 19 3 3 , II, 12 3 , 129 , 13 3 , 140, 15 7 , esp. 17 5 , 17 6 , 1 8 1 , 187.
Anneliese Mayer, England als politisches V orbild und sein Einfluss auf die
politische Entwicklung in Deutschland bis 18 3 0 (Dissertation Freiburg), 1 9 3 1.
82. Mayer, op. cit., p. 20.
83. T h e democratic leader, Jakob Venedey, in Afacchiavel, Montesquieu, Rous
seau, Berlin, 1850 , consequently rejected M ., although he tried to re-interpret him.
84. W h o criticized Montesquieu, but yet was much closer to him than he
realized. T he criticism is appended to the English translation of Dcstutt De Tracy,
op. cit., pp. 2 6 1-2 8 2 .
85. On Frederick II of Prussia, see V era Fuchs Die strafrechtlichen Anschauun-
gen Montesquieus und Friedrichs des Grossen (Zurich Dissertation), Zurich, 19 2 7 ;
on Catherine of Russia, see Leo Gershoy, From Despotism to Revolution, 1 7 6 3 -
1789, New York, 1944, pp. 1 1 1 - 1 1 2 and 2 18 with additional references. On Black-
stone, see Fletcher, op. cit.
Bibliographical Note
No student of Montesquieu can dispense with the excellent work, Montesquieu:
A Bibliography, compiled by David C . Cabeen and published by the N ew York
Public Library, 1947.
T h e following works by Montesquieu have been used:
1 . Oeuvres completes de Montesquieu. Ed. by E . Laboulaye, seven Vols. Paris,

18 7 5 -7 9 . This is the best Montesquieu edition, although neither a complete nor
a critical edition.
2. T he Esprit des Lois has been used in the Laboulaye edition. T he present text
is that of the Nugent translation. A new English translation is necessary but is not
desirable before a critical French edition of the Esprit des Lois has been made.
3. L ettres Persanes. There exists an excellent, critical edition by II. Barckhausen,

Paris, 18 9 7 . 1 have quoted here from the English edition, Persian Letters, translated
by John Davidson. Several editions of this translation are available.
4. Considerations sur les causes de la grandeur des Romains et de leur deca
dence. There exists an excellent, critical edition of II. Barckhausen. Paris, 1900. I
have quoted here from: Montesquieu's Considerations on the Causes of the
Grandeur and Decadence of the Romans. Transl. by John Baker, New York, 18 8 2.
5. Pensces et Fragments inedits de Montesquieu. T w o V ols. Bordeaux, 18 9 9 -

19 0 1. An abstract of these in Cahiers ( 1 7 1 6 - 1 7 5 5 ) . E d. by B. Grasset. Paris 19 4 1.
Both have been used.
6. Voyages de Montesquieu. Ed. by Baron Albert de Montesquieu. T w o’ V ols.
Bordeaux, 18 9 4 -18 9 6 .
7. Melanges intdits de Montesquieu. Ed. by Baron Gaston de Montesquieu.
Paris, 189 2.
(148) Montesquieu
8. Correspondence de Montesquieu. T w o Vols. E d. by F . Gebelin and A . Mo-
rize. Paris, 19 14 .
9. Histoire Veritable, edition critique par Roger Caillois (“ Textes litteraires
frangais” ). Lille and Geneva, 1948; this is an excellent edition of a manuscript, pub
lished first in the Melanges (7).
[chapter 5]
c«
ON THE L IM IT S OF JU S T IF IA B L E
D ISO B E D IE N C E *
when i started my work on this paper, I thought the answer to the

question would be easy. One could, so I believed, easily state the
conditions under which the citizen may refuse obedience to positive
law. The more I thought and the deeper I went into literature, the
less became my certainty. To be sure, I could easily present a formula
—I could refer to natural law, to inalienable rights—but a formula
has a meaning only if and when it is applied to concrete circumstances,
and is quite empty when it is abstractly stated. I am afraid, therefore,
that my answer will be quite unsatisfactory. I shall be far more con
cerned with pointing out the difficulties inherent in the affirmative
and in the negative, than in a formulation of a theory of my own.
The problem is, of course, quite old. In its extreme form, it involves
the right to kill a tyrant. As it is my general conception that problems
of political philosophy are best understood if the marginal cases are
clearly stated, I shall begin with the extreme manifestation of the
right of resistance: the so-called regicide or tyrannicide problem.
I
1. The history of regicide begins with an historical error. In the
ancient tradition,1 the assassination of Hipparchus (the son of Pisis-
tratus) by Harmodius and Aristogiton (514 B.C.) was hailed as the
first example of the removal of a tyrant by freedom-loving conspirators.
Yet we know that the murder was entirely motivated by a personal
grudge against the tyrant and not directly by political considerations.
Still, it is this assassination which gave rise to the powerful tradition
"Reprinted from Conflict of Loyalties, ed. R . M . M clver (Harper, 1952).
(* 49 )
(iS °) On the Limits of Justifiable Disobedience
which continued up to the seventeenth century (the rise of secular
absolutism) and which received a new impetus with the ascendance
of totalitarianism. If one analyzes the reaction of public opinion to the
attempt on Hitler’s life (July 20, 1944) one is struck by the fact that
the right to assassinate him was never questioned by the Western
world, which merely complained of the lack of its success.
If I am right in this, the question posed is, indeed, quite vital. Per
haps, through this analysis, the general problem of the right of re
sistance may receive some clarification.
2. To the ancients, a problem apparently did not exist. One ought
to expect that Plato would discuss the tyrannicide problem. But he
does not. Yet the first genuine assassination of a tyrant for political
reasons was carried out by two of his students. In 353, Clearchus,
tyrant of Pontic Heraclca was killed for patriotic reasons by Chion
and Leonidas. Plato, and there is virtually no disagreement on this
point, assumes that a tyrant forfeits his life. Books 8 and 9 of his
Republic show this quite clearly. The same is true of Aristotle. lie
introduces a distinction between two types of tyranny: the tyrant
absque titulo (the usurper); and the tyrant quoad exercitio (the legiti
mate ruler who violates the law). But a philosophical analysis of the
conditions under which the one or the other may be removed is not
to be found in Aristotle’s work.
3. Yet, it is impossible to ape today the, let us say, attitude of non
chalance of the ancients toward tyrannicide. It is quite closely tied
up with their general philosophical theory that man exists only as a
citizen of the polis. If man’s existence is solely, or primarily, a political
one, then tyrannicide follows: the life of the ruler is then dependent
upon his usefulness for the city. This philosophy we cannot accept.
To us, man exists quite independently of the political organization in
which he lives.
Consequently, St. Augustine2 answered the tyrannicide problem
quite differently. God, so he says, gave the Romans Augustus as well
as Nero, Constantine as well as Julian the Apostate. In rejecting the
right to suicide, St. Augustine reiterates that nobody may arbitrarily
kill a man, not even a condemned criminal. Two exceptions merely
are admitted: authorization by a just law; and a special command by
God.3 St. Augustine is, however, fully aware of the dangers inherent
in the two exceptions. To ward off too wide an interpretation of the
On the Limits of Justifiable Disobedience (1 S 1 )
exceptions, he even criticizes the Old Testament generally preferring
the New Testament, and even doubts that Moses was right in killing
the Egyptian.4
4. This Augustinian position, however, did not prevail for long.
While I cannot cite here the long history of regicide doctrines, the
emphatic affirmation of regicide in John of Salisbury's Policraticus,
the reluctant and hedged in acceptance by St. Thomas Aquinas, make
it important to realize that all protagonists of tyrannicide draw their
illustrations from the Old Testament and from antiquity, and dis
card the Augustinian position. It is this conflict between the two
Christian traditions which shook the Christian world in the early
fifteenth century. On November 23, 1407, Duke Louis of Orleans was
assassinated by two noblemen on the instigation of Duke John of
Burgundy.5 For more than ten years did the “ Justification of the Duke
of Burgundy,” by Jean Petit, excite the world:6 Everybody may kill a
tyrant, oaths become invalid, and immoral means are justified against a
tyrant—thus can his statements be summarized. The Council of Paris
(14 13-14 14 ) dealt exclusively with this issue and at it Jean de Gerson,
chancellor of the University of Paris, undertook to restore the August
inian position. Yet the majority of the theologians did not follow him,
although Gerson formally obtained a victory. The Council of Con
stance reaffirmed, at least in the decisive parts, the tyrannicide justifi
cation of Jean Petit. There exist, of course, fundamental differences
between the ancient and the medieval justification of tyrannicide.
While the former found the legitimacy in the good of the polis, the
latter found it in natural law and in the feudal relationship between
lord and vassal. Whether any of these are adequate, shall concern us
later.
5. While political murder was, of course, widely practiced in the
Renaissance period, theories about tyrannicide are absent. One is more
concerned with its psychology and sociology, that is, with the tech
nological aspects of political murder, than with its morality. Con
sequently, we call these doctrines of politics arcana doctrines, because
they debate exclusively the means by which a political end can be most
rationally achieved.
6. The new wave of doctrinal discussions concerning the right of
resistance and the right to kill a tyrant follows the Reformation. W e
know that neither Luther nor Calvin advocated revolt against the
(152) On the Limits of Justifiable Disobedience
authority of the prince and that both rejected tyrannicide. Yet, while
Luther’s attitude is fairly unambiguous, Calvin’s is by no means so.
W hile the histories of political thought usually stress that Calvin per
mitted resistance by those organs of the state which are constitutionally
entrusted with restraints of monarchical power (such as Estates), one
usually overlooks the farreaching statement at the very end of his
Institutes:7 “ In two ways God restrains the fury of tyrants: either by
raising up from among their own subjects open avengers who rid the
people of their tyranny, or by employing for that purpose the rage of
man whose thoughts and contrivances are totally different, thus over
turning one tyranny by means of another.” W hile the first half of
the statement envisages the Cromwellian type of a select secular savior,
the second half is probably not more than a sociological analysis of the
phenomenon that a tyranny may breed a counter-tyranny. Thus, his
statement may perhaps not be conceived as a justification of tyranni
cide.
Yet, whatever may have been the attitudes of the reformers them
selves, those of their followers exhibit the whole range of attitudes:
from absolute submission to secular power; via passive obedience; to
active resistance and regicide. In the Protestant Monarchomachs, the
right to resist is unquestioned: John Poynet, Christopher Goodman in
England, Jean de Poltrot, Francois Hotman, Junius Brutus in France,
to mention but a few. The theory of resistance is Calvinism—or as it
was understood by this political party.
7. A new theory of resistance was, however, developed by the Cath
olic party, particularly by the French Jean Boucher8 and the Spaniard
Juan de Mariana.9 This theory is allegedly democratic. God invested
the people with political power; they may, in a case of tyranny, revoke
the agreement with the ruler, depose, and even kill him.
II
Let us leave the historical survey here. It cannot but make us despair,
if we hope, through a mere historical analysis, to arrive at a conclusion
whether or not, and under what conditions, a right of resistance is
permissible. W hat history shows is merely that all political doctrines
were used for purely political purposes: resistance was justified when
it suited the interests of a group and was rejected when it did not.
1. In all the theories which I have sketched, one simple problem
On the Limits of Justifiable Disobedience (1 Ss)
cannot be answered: who makes the decision whether and when a right
to resist exists.
In the case of the ancients: who decides what the good of the polis
requires; for the medieval theories, it is either the Church or the secular
powers which claim the authority to make the decision; in the mon-
archomachic struggles, the religious party decides; in the so-called
democratic theories—the people.
W e may give to these various theories of resistance three names:
W e may call the ancient theory a functional theory—resistance is
justified, if and where the ruler no longer fulfils his proper function.
W e may call the medieval, natural law theories—resistance is justi
fied, if and where the ruler forgets the restraints imposed upon him
by natural law, or does not rule according to these precepts.
W e may call the modern, democratic theories of resistance, for ob
vious reasons.
To decide upon the validity of the three theories, we must attempt
a more theoretical analysis.
2. Here, the question hinges upon an analysis of the meaning of the
term, '‘right.” This term may mean first: the power to act by grant
of positive law; second, the power to act by grant of an objective
natural law; third, the power to act is deemed to be inherent in the
very nature of man (what may be called a natural right).
3. Is it really significant to interpret the term, “ right,” as a term of
positive law? Two possibilities exist. Positive law may expressly or
implicitly prohibit resistance. In that case, no problem of positive law
exists.
Or, positive law may expressly or implicitly permit the right of
resistance. In our Declaration of Independence, the first part of the
second paragraph establishes under certain conditions “ the right of
the people to alter or abolish (any form of government), and to in
stitute new government.” Yet the Declaration does not contribute to
our problem. It is the “ people” 10 alone who can lawfully make a
revolution, the individual right of resistance is not encompassed by it.
4. Let us take a modern case: the Constitution of the State of Hessen
in Western Germany. Article 147 provides: “ It is the right and duty
of everyman to resist unconstitutionally exercised public power.”
Surely a well-intentioned provision inserted after a speech by the then
Communist deputy Bauer (now purged by the Soviets) who insisted
(154) On the Limits of Justifiable Disobedience
on everyman’s right and duty to defend the Constitution against all
anti-democratic movements.11 But has it any meaning? The answer is,
no. And this negative answer must be given to all who expect a solution
of the problem from positive law, even if the concrete provisions of
positive law go beyond the formulation of the Hessian constitution.
Let us assume a constitution provides that everyone may lawfully resist
any infringement of the state with one’s inalienable right of life and
liberty. This provision becomes meaningful, only if there is an ultimate
organ (such as an independent judiciary) deciding whether or not the
state did unjustly interfere with my rights, or, in the case of Hessen,
the constitutional court will ultimately decide whether public power
was unconstitutionally exercised. One may say that this is perfectly
adequate. For practical purposes it may be more often than not. But
sometimes, it is not. Certainly those who did entrust their rights to
the judiciary of the Weimar Republic could not hope to have their
rights preserved. The German judiciary was then a political organ of
the anti-democratic counter-revolution and not an independent judici
ary for the protection of civil rights. Whether this is radically different
today is difficult to say. But even in our judicial system, although it is
infinitely superior to the German, we may encounter politically biased
judges and juries which express mob sentiments rather than a con
sidered judgment of rationally thinking people.
So that, even for practical purposes, the positive enactment of the
right of resistance does not always help. That it is not satisfactory from
a theoretical point of view, is obvious, because the decision does not
rest with the individual but with some governmental organ.
5. Do the doctrines of natural law provide an adequate theoretical
base? That is: can the term, “ right,” be interpreted to mean either a
power flowing from an objective system of natural law or deemed to be
inherent in the very nature of man? If we mean by natural law the
Thomistic system, the answer is simple, only if we accept with it the
authority of the Catholic Church to decide if and when secular powers
have violated the objective norms of natural law. If we do not, that is,
if we accept the normative system without its institutionalization, then
we face the problem which Kant faced in his political philosophy. He
started with the doctrine of natural right and ended with the postulate
of absolute submission to the political powers that are. “ Freedom,” so
he says, “ is the independence of the compulsory will of another, and in
On the Limits of Justifiable Disobedience ( 15 S)
so far as it can co-exist with the freedom of all according to a universal
law, it is the one sole, original, inborn right, belonging to every man
by virtue of his humanity/’12 Yet the decision whether my freedom
can co-exist with that of others lies solely with the sovereign state.
Why? Because the right of resistance is incompatible with the notion
of the state. I quote: “ For whoever would restrict the supreme power
of the State must have more, or, at least, equal power, as compared
with the power that is to be restricted; and if competent to command
the subjects to resist, such a one would also have to be able to protect
them, and if he is to be considered capable of judging what is right in
every case he may also publicly order resistance. But such a one, and
not the actual authority, would then be the supreme power; which is
contradictory/’13 This argument is logically unassailable. It merely
expresses the theoretical difficulty in which modern political theory
finds itself.
6. The problem of political philosophy, and its dilemma, is the recon
ciliation of freedom and coercion. W ith the emergence of the money
economy, we encounter the modern state as an institution which
claims the monopoly of coercive power, in order to provide a secure
basis upon which trade and commerce may flourish and the citizens
may enjoy the benefits of their labor. But by creating this institution,
by acknowledging its sovereign power, the citizen created an instru
ment that could and frequently did deprive him of protection and of
the boon of his work. Consequently, while justifying the sovereign
power of the state, he sought at the same time to justify limits upon
the coercive power. The history of modem political thought is the
history of this attempt to justify might and right, law and power. There
is no political theory which does not do both things. The most abso-
lutive theories (Hobbes and Spinoza) which, at first sight, reject indi
vidual right, admit them, however, through a back door: Hobbes by
transforming the sovereign into a kind of business agent of society
with all the power he wants if he conducts his business well, but with
none if he fails to secure order and security; Spinoza by his formula
that right equals might, permits any social group that is powerful
enough to transform its social power into right, to change from, an
alterius iuris into a sui iuris. Locke, the protagonist of right and law,
felt compelled to admit the prerogative power authorizing the monarch
to act without law, and sometimes even against it, if and when right
(i $ 6) On the Limits of Justifiable Disobedience
and law tend to jeopardize the state.14 Put in a short formula: freedom
is not only liberty against government, but equally liberty through
government. The two aspects may harmonize in some historical situa
tions; they may not in others. They may harmonize for some groups
in society and not for others.
7. Can we accept the Kantian solution of the conflict? This solution
is merely the reformulation of Rousseau’s idea of the general will as
the great harmonizer of the collective interest of the nation with the
interests of its citizens. Yet the democratic theory provides no solution
to the right of resistance. A genetic theory (the theory of the origin of
political power) does not, thereby, make the exercise of power legiti
mate. The democratic majority may violate rights. A wrong cannot
possibly become right because the majority wills it so. Perhaps it,
thereby, becomes a greater wrong.
But it is argued that the right of resistance while germane to all
non-democratic political systems, is really expendable in a democracy,
because the democratic system provides ample relief for minority views.
The very system of democracy is thus conceived to be a kind of
institutionalized right of resistance. This argument, however, is falla
cious. There is, already, a pragmatic objection to this view. Whether
or not a democracy really protects minority views, is open to judgment.
Different views may be held in regard to each and every one of the
various types of democracy. Consequently, for those who allege,
rightly or wrongly, that the system does not adequately safeguard their
rights, the individual right of resistance still remains a problem. One
cannot, theoretically, answer this view by referring to the independent
judiciary—for reasons already discussed.
Consequently, while democracy certainly eases the problem of the
individual’s right of resistance, it does not eliminate it.
8. W e are thus thrown back to the doctrine of natural rights (or
natural law). Here, a distinction is vital, that, namely, between the
theoretical base of the natural rights doctrine and its concrete mani
festations.
The latter (namely, a natural law system with concrete inhibitions
and norms) is theoretically untenable. The criticisms of Hume15 and
Hegel16 are unanswerable.17 All these systems arc philosophically arbi
trary. They endow man, in his state of nature, with certain qualities
and then deduce a concrete system of natural rights (and duties) from
On the Limits of fustiEable Disobedience (1 57 )
the arbitrary statement of the nature of man. Both Hume and Hegel
(and many others, particularly Georges Sorel)18 make the obvious
point: that the opposite view is always conceivable. As Hegel puts it,19
the “ guiding principle of the a priori is the a posteriori.” Similarly,
Rousseau formulated his objection to the natural law doctrines: “ He
(namely, the natural law theorist) begins by casting about for the rules
which, in their own interest, it would be well for men to agree upon;
and then, without any further proof than the supposed advantage thus
resulting, he proceeds to dignify this body of rules by the name of
Natural Law. All the philosophers of his school have followed the
same method. The result is that all the definitions of these learned
men, in standing contradiction with each other, agree in this conclu
sion only: that it is impossible to understand, impossible, therefore,
to obey, the law of nature without being a very deep reasoner and a very
great metaphysician. And that is only another way of saying that, for
the establishment of society, men must have made use of the wisdom
which is, in fact, only gradually acquired by a small minority of men,
and that with the utmost difficulty, in the bosom of society itself.” 20
It is, in my view, impossible not to agree with these criticisms which
apply with equal force to the Stoa, to St. Thomas, Hobbes, Pufendorf,
Locke, Kant, and many others.
Ill
1. W hile this critique is valid, it is valid only if directed against one
of the various concrete systems of rights and duties deduced from
natural law. It is not valid if it is leveled against the philosophical base
of natural law. Every doctrine of natural law21 is based upon the exist
ence of man as a rational being who has an existence independent from
the political society within which he lives. Only those who accept
Platonism, Universalism, etc., can reject this basic truth. By speaking of
man, we speak of him as being endowed with reason, for only thus can
we define man (as contrasted with other forms of organic life). But
if we accept this as true, then we accept certain minima following from
this proposition. These minima (and it is not important whether they
are labeled natural rights or not) are thus valid, regardless of the politi
cal system, valid against any political system, even against a democracy.
This minimum can be enjoyed only by man—not by artificial per
sons such as corporations, states, etc.
( j 5#) On the Limits of Justifiable Disobedience
1. These are the statements: the concrete content of the minimum
is, first, the doctrine of the legal equality of all men. As man is rational,
all men are rational. None can be enslaved. Not only the affected per
son, but every man, has the right to resist a law which aims at the
enslavement of a part of mankind. The subject matter of the right is
mankind, represented and manifested in each human being.
ii. All laws affecting life and liberty must be general in character.
Individual laws are bills of attainder, constitute exceptional legislation,
and violate the principle of equality. Resistance to them is thus legiti
mate.
iii. Retroactive laws, that is, ex post facto legislation depriving man
of life and liberty, violate the principle of the law’s universality. They
are thus illegitimate, and resistance to them is legitimate.
iv. The enforcement of laws affecting life and liberty must be en
trusted to an organ separated from the decision making agencies of
the state. To this extent (but to this extent only) the doctrine of the
separation of powers follows from proposition ii, namely, that laws
infringing upon life and liberty" must be general in character.
These four statements seem, in my view, to embody the minimum
political content derived from the proposition of man’s rational char
acter. Not more. Violation of any of those four statements makes the
exercise of political power illegitimate, and thus gives everyone (af
fected or not affected) a right to resist. Whether this right can prevail
—is, of course, another matter.
2. This may sound very thin and unsatisfactory. But only if we forget
that man may morally resist any command of his government if his
conscience impels him to do so. This even Hegel recognized.22 Ac
cording to him, man’s “ inner voice” may well conflict with the pre
cepts of positive law. This, however, is not a question of “ right.” There
cannot be made a universally valid statement telling us when man’s
conscience may legitimately absolve him from obedience to the laws
of the state. Every man has individually to wrestle with this problem.
If he decides to resist, he cannot invoke a “ right,” but he will evoke
our sympathy. Beyond the four statements on the unconditional right
of resistance, each man must make his decision. Locke23 and Hegel24
agree that the strong state will be very lenient and tolerant toward
those whose conscience makes it impossible to accept a state’s orders.
On the Limits of Justifiable Disobedience (* 59)
If it should not, the resister will, if his conscience urges him, resist and
risk, rather than obey and be safe.
This dilemma between conscience and social order no theory can
solve. If it pretends to do so, it will merely repeat abstract, empty
formulae which, devoid of concreteness, merely veil the impossibility
of squaring the circle.
W ith this note of skepticism I end.
Notes
1. C f. especially Hans Georg Schmidt, Die Lehre vom Tyrannenmord, T u
bingen, 19 0 1.
2. C f. M ax Lossen, D ie Lehre vom Tyrannenmord in dei Christlichen Zeit,
Miinchen, 1894. All quotations from St. Augustine are from Lossen’s paper.
3. D e civitate Dei, Book I, C h . 17 and 2 1 ; and Book V , C h . 19 and 2 1.
4. Op. cit., Book I, C h . 26; and cf. Faustum, Book 22, C h . 70 in Migne, 42, 444.
5. On this see Friedrich Schoenstedt, Der Tyrannenmord im Spaetmittelalter,
Berlin, 1938.
6. A. Coville, Jean Petit, la question du tyrannicide au commencement du X V *
siecle, Paris, 19 32.
7. Book IV , C h . X X , 3 1 , I quote the more precise Aphorism N o. 99 in the
translation of Henry Beveridge.
8. Sermons de la simulee conversion et nullite de la pretendue absolution de
Henri de Bourbon, Paris, 1594 .
9. De Rege et Regis Institutione (transl. by G . A . Moore as The King and the
Education of the King), W ashington, D .C ., 1948.
10 . See on this Carl L . Becker, The Declaration of Independence, N ew York,
1942, p. 9.
1 1 . This constitutional provision is discussed by Carl Heyland in his book, Das
Widerstandsrecht des Volkes, Tubingen, 19 50 , p. 85.
12 . Metaphysik der Sitten, Rechtslehre (Einleitung B), transl. Hastie, p. 56.
13 . Ibid, Part II, Section 1 (Allgemeine Anmerkung A), p. 17 5 .
14 . T he foregoing is taken from my Introduction to Montesquieu, The Spirit of
the Laws, Hafner Library, N ew York, 1949, reprinted in this volume.
15 . On Hume's criticism (in his Treatise of Human Nature) see particularly
George H . Sabine, A History of Political Theory\ New York, 19 3 7 , pp. 5 9 S -6 16 .
16 . In Ueber die Wissenschaftlichen Behandlungsarten des Naturrechts, 1802.
17 . On the whole problem see my “ Types of Natural L aw ," reprinted in this
volume. I do not, however, fully maintain this position.
18. In L e Proces de Socrate, Paris, 1889.
19. Op. cit., Schriften zur Politik und Rechtsphilosophie, Leipzig, 1 9 1 3 , p. 339.
20. “ Discours sur L'inegaiite.” T he translation is taken from C . E . Vaughan,
Studies in the History of Political Philosophy before and after Rousseau, M an
chester, 1939, I, pp. 1 7 7 - 17 8 .
2 1. Except those purely “ naturalistic” ones which allege the natural right of the
stronger. See Plato in Gorgias (Callicles’ statement).
22. Note to preface to his Philosophy of Right.
23. Second Treatise 1 1 , C h . X V I I I , 208-209.
24. Philosophy of Right. Note to $ 270 (on Quakers and Anabaptists).
[chapter 6]
<[ l[
THE C O N C E P T OF P O L IT IC A L F R E E D O M *1
I t is a fairly widespread academic doctrine that political theory is con

cerned with determining the limits of the citizen’s obedience to the
state’s coercive powers. In this formula coercion appears legitimate,
and the sole function of political theory is to erect a fence around such
political power. The analysis of political power—its origin, manifesta
tions, and techniques—belongs to another discipline, sociology. In
both disciplines political power seems to be accepted as an ontological
datum, a natural fact, and the role of political theory is to see to it that
political power behaves with relative decency.
Insofar as political theory is concerned with the legitimacy of politi
cal power, it has, according to prevailing opinion, a mere ideological
function. Political theory is conceived as a rationalization of existing
power relationships. A theory’s validity is thus determined by a prag
matic-utilitarian appraisal in terms of the assistance it gives in defend
ing or conquering an existing power position, with its propagandistic-
manipulative success the criterion of its truth.
This position expresses, often unwittingly, the political alienation of
contemporary man: the fact that man considers political power a force
alien to him, a force which he cannot control and with which he cannot
identify himself, and which at best can be made barely compatible with
his existence. The extraordinary decline in prestige of the political phi
losophies of Plato and Rousseau—theorists who attempted to solve the
problem of man’s political alienation—seems to confirm this view.
There is, of course, no doubt for any realistically minded person that
politics is a struggle for power—a struggle between persons, groups, and
states. The assertion that in politics Right fights Might, Idea combats
Power—with the frequent addition that, after all, Right and Idea will
* Reprinted from Columbia Law Review, vol. 53, no. 7 (November, 19 53), PP-
9 0 1-9 3 5 .
(160)
The Concept of Political Freedom (16 1)
ultimately be victorious—may be edifying and comforting to many but
seems impossible of proof. In fact, whenever Right has had to contend
with Power, Right has been defeated. Were we to stop at this formula,
we ought to abandon political theory altogether (save as a technique
of manipulation) and accept what one commonly understands by
Machiavellianism: that nothing really changes in politics, that the
“ outs” always fight the “ ins” for profit, prestige and security. The wise
observer will add that you cannot expect anything else, human nature
being as it is—basically selfish and evil.
In a period of conflicts, of uncertainty, hatred, and resentment, this
view—like pessimistic theories in general—seems especially attractive.
St. Augustine's theory of man (as commonly interpreted), Machiavelli’s
view of politics, Mettemich's conception of foreign relations, are all
unquestionably fashionable today, and if contrasted with a shallow
misinterpretation of enlightenment philosophy they are certainly more
realistic. Modern sociology and political science do not weary of stress
ing the view that politics consists in nothing but the manipulation of
large masses by small elites, particularly through clever use of symbols:
in order to beat an enemy, one must merely be cleverer. A theory then
becomes an ideological statement which, if repeated often enough, will
by its own weight change the political situation and produce victory.
But the ordinary man is repelled by these conceptions. Distinguish
ing the promotion of an idea from the sale of soap he refuses to accept
the view that the legitimation of political power is a matter of indi
vidual preference. As a political man he deeply feels that his preference
must be part of a more universally valid value system, a system of
natural law or justice or national interest or even humanity.
Politics is indeed a struggle for power—but in this struggle persons,
groups, and states may represent more than their egoistic interests.
Some may really defend national interests or those of humanity, while
their opponents may merely rationalize their egoistic-particular de
mands. The thought structure of the former would be termed an idea;
the latter, an ideology—an arcanum dominationis designed to hide and
rationalize concerns which are actually egoistic.
This formula, of course, answers no questions. How does one deter
mine whether an interest is more than a particular one? The answer is
difficult, more difficult today than perhaps at any other period of his
tory, precisely because our thinking is so heavily permeated by propa-
(162) The Concept of Political Freedom
ganda that it sometimes seems hopeless to attempt to pierce the layers
of symbols, statements, ideologies and thus to come to the core of
truth.2
Yet this is precisely the task of political theory. It is in this enterprise
that political theory parts company with the sociology of knowledge.
Sociology is concerned with description of the factual; political theory
is concerned with the truth. The truth of political theory is political
freedom.3 From this follows one basic postulate: Since no political
system can realize political freedom fully, political theory must by
necessity be critical. It cannot justify and legitimize a concrete political
system; it must be critical of it. A conformist political theory is no
theory.
Thus the concept of political freedom needs clarification. The pres
ent discussion has primarily a didactic function: to dissect the concept
of political freedom into its three constituent elements—the juridical,
the cognitive, and the volitional—with the hope that they may be re
integrated into an overall theory of political freedom.
The Concept of Juridical Liberty

Freedom is first and foremost the absence of restraints. There is little
doubt that this view underlies the liberal theory of freedom, that it is
the key concept of what one understands by constitutionalism, that it
is basic to the understanding of what, particularly in the Anglo-Ameri
can tradition, one understands by juridical liberty.4 This is the formula
of Hobbes (although he formulated it as a natural science theory), and
of Locke, Montesquieu3 and Kant. Thus understood, freedom may be
defined as negative or “ juristic” freedom. In referring to this concept
as negative we do not mean bad or objectionable, but rather that it is
in the Hegelian sense6 one-sided and therefore inadequate. The nega
tive element may not be thrown out—to do so leads to the acceptance
of totalitarianism—but it cannot, of itself, adequately explain the no
tion of political freedom. Translated into politics, the negative aspect
of freedom necessarily has led to the formula of citizen versus state.
The real meaning of this formula needs clarification.
Its basic presupposition is philosophic individualism—the view that
man is a reality quite independent of the political system within which
he lives.7 The positing of man against political power implies, in vary
The Concept of Political Freedom (*63)
ing degrees, an acceptance of man's political alienation. Political power,
embodied in the state, will always be alien to man; he cannot and
should not fully identify himself with it. The state must not completely
swallow up the individual; the individual cannot be understood merely
as a political animal.8 A political theory based upon an individualistic
philosophy must necessarily operate with the negative-juridical concept
of freedom, freedom as absence of restraint.
The idea that there are individual rights which political power may
restrain and restrict but never annihilate is concretized in the civil
rights catalogues of the various constitutions. Indeed, for practical
purposes, juridical freedom largely coincides with these charters. An
analysis of civil rights provisions thus seems equivalent to an analysis
of the concept of juridical freedom. Legally, civil liberties establish a
presumption in favor of the rights of the individual and against the
coercive power of the state. They are no more than presumptions be
cause there is not, and obviously cannot be, a political system which
recognizes the individual's sphere of freedom absolutely and uncon
ditionally. Thus the state may intervene with the individual’s liberty—
but first it must prove that it may do so. This proof can be adduced
solely by reference to “ law” and it must, as a rule, be submitted to
specific organs of the state: courts or administrative tribunals. There
are thus three statements inherent in this analysis of civil rights:
The burden of proof for intervention rests always with the

state.
The only means or proof is reference to a law.
The method by which a decision is to be reached is regu
lated by law.
Clearly the political significance of this formula depends upon the

meaning of the term “ law.” Abstractly, there are three possible defini
tions:12*
1. Law may mean a set of rules of behavior asserted to be objectively

valid within any political system (as is the case in the Thomastic view).
2. Law may mean the sum total of individual rights allegedly exist
ing prior to the political system and not being, in their essence, affected
by it (the Lockean position).
3. Law may mean the positive law of the state, valid if enacted in
accordance with a written or unwritten constitution.
The first two meanings of the term “ law” can be dispensed with in
our analysis. In the reality of political life, natural rights (in either
meaning) have validity only if they are institutionalized, only if there
is an authorized agency capable of enforcing them against opposing
provisions of positive law. Thus medieval natural-law norms were valid
if the Church or the vassals were successful in asserting what they con
sidered natural rights against imperial or royal legislation. The right of
resistance was then indeed the institutionalization of “ natural law.” 9
W ith the emergence of the state, with its institutional monopolization
of the means of coercion, “ natural law” or “ inalienable natural rights”
have a political meaning only if they are recognized by organs of the
state—and to this extent they become positive law. This is precisely
the case with civil rights when they are incorporated into a written
constitution or are recognized, as in the English system, in constitu
tional and legal practice.10 The philosophic theories concerning civil
rights may have shaped their enactment and may still be necessary for
interpreting them in ambiguous situations, but they do not determine
their legal validity.
Thus the “ law” by which the state proves its right to interfere with
individual rights can only be positive law.
* * *
Yet the meaning of the term “ positive law” is in itself a problem.

Genetically, the validity of positive law is determined solely by the fact
that it is enacted in accordance with certain written or unwritten pro
cedural rules. Thus the Hobbes-Austin-Kelsen definition is correct,
translating the concept of sovereignty into legal terms. Law is simply
voluntas, or will.
But historically there has been a second definition, concerned with
the formal structure of positive law, one which emphasizes its gen
erality. Were law merely voluntas, the concept of a “ rule of law” would
have no ascertainable meaning for the protection of individual rights,
for sovereignty and law would then be synonymous. Actually there
exists a steady tradition, stemming from Plato11 and Aristotle,12 hold
ing that no matter what the law's substance its form must be general
(or universal, as it is sometimes termed). Even when natural law has
been rejected, insistence upon the law’s formal structure survives as a
minimal requirement of reason for restraint of power. The generality
of the law may thus be called secularized natural law.13
The generality of law means logically a hypothetical judgment by the
state on the future behavior of legal subjects, its basic manifestations
being the legislative statute or the ratio decidendi of the common law.
Two determinants are contained in this definition: first, law must be
a rule which does not mention particular cases or individual persons
but which is issued in advance to apply to all cases and all persons in
the abstract; and second, it must be specific, as specific as possible in
view of its general formulation.14 This view of the nature of law deter
mined legal and political thought from the 17th century on. It was
common to Hooker and Locke and was most accurately formulated by
Rousseau, in whose political philosophy this notion of law is virtually
the sole institutionalized limit upon the community’s sovereignty.
This is how he defines the law:
When I say that the object of the law is always general, I mean that the
law considers the subjects in their totality and their actions in the abstract,
but never a man as a single person and never an individual act. Therefore,
the law may well provide that there shall be privileges but it must never
grant them to a named person . . . in a word: each statement referring to
an individual object does not belong to the legislative power.15
France and England adopted this position. Even Austin, protagonist of

the volitional theory of law, says: “ Now where the law obliges generally
to acts and forbearances of a class, a command is a law or rule.” 18 Al
most every theorist asserts that this ought to be the theory of law17
even where one has to admit that positive constitutional law permits
the enactment of individual measures.18
From the simple proposition that there exists a presumption in favor
of the individual’s freedom there follows every element of the liberal
legal system: the permissibility of every act not expressly forbidden by
law; the closed and self-consistent nature of the legal system; the in
admissibility of retroactive legislation; the separation of the judicial
from the legislative function. These concepts were—and seem still to
be—accepted by the civilized world without question, with their logical
connection with the doctrine of the law’s generality well perceived.
If there is a presumption for the individual’s right, it logically follows
that only behavior that is expressly forbidden by law is punishable. This
statement is universally recognized as being the foundation of legal
liberty. Hence follows the inadmissibility of bills of attainder, which
deny that a presumption exists for right against power and which per
mit power to enact individual measures directed against specifically
named persons. By this token the bill of attainder is a legislative and
judicial act in one.19 The doctrines nullum crimen sine lege and nulla
poena sine lege are latinistic formulations of the basic principle20
against retroactivity.21 Its inadmissibility follows logically from the
structure of the general law as a hypothetical judgment about future
behavior—a rule, therefore, for an indefinite number of concrete cases.
A retroactive law covers, hidden behind the language of a general law,
countable concrete cases, and is thus in reality a mechanical addition
of individual measures.22 The famous Nazi Lex van dcr Lubbe of
March 29, 1933, retroactively introducing the death penalty for arson,
was enacted for the sole purpose of dealing with the alleged arsonist
of the Reichstag.
Moreover, the generality of the law implies the doctrine of a sepa
rate judiciary. If the law is to be abstract, if it is to regulate an unknown
number of future cases, then its application to concrete cases cannot
be in the hands of those who make the general rule. Thus judicial or
administrative functions are legally subordinated (no matter what may
be the sociological theory of the judicial function) in such a way that
the judge or administrator performs the routine function of subsuming
a concrete case under a general law.
The liberal legal tradition rests, therefore, upon a very simple state
ment: individual rights may be interfered with by the state only if the
state can prove its claim by reference to a general law which regulates
an indeterminate number of future cases; this excludes retroactive
legislation and demands a separation of legislative from judicial func
tions. The underlying assumption of the liberal legal system is the
logical consistency of the law. The legal system is deemed to be
closed so that new law can be created only by legislation; the judge or
administrator must answer each case by reference to existing law.23
* * *
I have little doubt that this formula expresses, so far as any formula
can, the creed of liberal legal thought. Yet there remains the question
The Concept of Political Freedom (167)
of what this theoretical system actually guarantees. I have distin
guished three functions of the generality of law: a moral, an economic,
and a political function.24
The moral (or ethical) function consists in the inherent elements of
equality and security which it presupposes. A minimum of equality is
guaranteed, for if the law-maker must deal with persons and situations
in the abstract he thereby treats persons and situations as equals and
is precluded from discriminating against any one specific person. By
the same token a minimum of security exists in the relation between
the individual and the state. The individual knows in advance that an
act, once performed, cannot be made punishable by a later law and
that he alone cannot be made to suffer, unless others, for similar rea
sons, are also made to suffer. This is the ethical content of the prohi
bition against bills of attainder—a prohibition by which the Anglo-
American countries have, on the whole, scrupulously abided. Even
Great Britain, where the sovereignty of Parliament theoretically per
mits the enactment of attainder bills, has never since the 17th century
resorted to them save in colonies against natives.25
Thus it seems correct to say that an ethical minimum is inherent in
this formal structure. This basic idea is well expressed in Cicero's state
ment, “ The magistrates who administer the law, the jurors who in
terpret it—all of us in short—obey the law to the end that we may be
free,” 26 and still more precisely in Voltaire's dictum, “ La liberte con-
siste a ne ddpendre que des lois.” 27 Both have in mind the general law.
If the sovereign may enact measures interfering with an individual's
rights, the role of judge becomes transformed into that of a policeman
or bailiff. The generality of the law is thus the precondition of judicial
independence, which, in turn, makes possible the realization of that
minimum of liberty and equality that inheres in the formal structure
of the law.
The formal structure of the law is, moreover, equally decisive in the
operation of the social system of a competitive-contractual society. The
need for calculability and reliability of the legal and administrative
system was one of the reasons for the limitation of the power of the
patrimonial monarchy and of feudalism. This limitation culminated in
the establishment of the legislative power of parliaments by means of
which the middle classes controlled the administrative and fiscal ap
paratus and exercised a condominium with the crown in changes of the
legal system. A competitive society requires general laws as the highest
form of purposive rationality, for such a society is composed of a large
number of entrepreneurs of about equal economic power.28 Freedom
of the commodity market, freedom of the labor market, free entrance
into the entrepreneurial class, freedom of contract, and rationality of
the judicial responses in disputed issues—these are the essential charac
teristics of an economic system which requires and desires the produc
tion for profit, and ever renewed profit, in a continuous, rational, capi
talistic enterprise.29 The primary task of the state is the creation of a
legal order which will secure the fulfillment of contractual obligations;
the expectation that contractual obligations will be performed must
be made calculable. This calculability can be attained only if the laws
are general in structure—provided that an approximate equality in
power of the competitors30 exists so that each has identical interests.
The relation between state and entrepreneur, particularly in regard to
fiscal obligations and interferences with property rights, must also be
as calculable as possible. The sovereign may neither levy taxes nor re
strain the exercise of entrepreneurial activity without a general law,
since an individual measure necessarily prefers one to another and thus
violates the principle of entrepreneurial equality. For these reasons the
legislator must remain the sole source of law. Thus seen, the alleged
contradiction in the attitude of liberalism toward legislation vanishes.
Roscoe Pound31 maintained that the Puritans' view of legislation con
tained an inherent contradiction: on the one hand, hostility to legisla
tion; on the other, firm belief in it and rejection of customary law and
equity. But this is precisely the attitude of the whole liberal period,
which, for obvious reasons, desires as little governmental intervention
as possible—since intervention, by definition, interferes with private
rights—but if intervention at all, then in the form of the legislative
statute with clear, precise, unambiguous general terms.
The political function of the general law is manifested in the Anglo-
American slogan: a government of laws and not of men;32 and in the
Prussian-German notion of the Rechtsstaat (state based upon law).
Both formulations contain, obviously, an ideological element. The law
cannot rule. Only men can exercise power over other men. To say that
laws rule and not men may consequently signify that the fact is to be
hidden that men rule over other men. W hile this is correct, the ideo
logical content of the phrase “ the rule of law" differs sharply accord
ing to the political structure of the nation which coins it. The English
rule of law and the German Rechtsstaat33 doctrines have really noth
ing in common. To the Germans, the Rechtsstaat merely denotes the
legal form through which every state, no matter what its political
structure, is to express its will.
The state is to be a Rechtsstaat; that is the watchword, and expresses what

is in reality the trend of modern developments. It shall exactly define and
inviolably secure the direction and the limits of its operation, as well as
the sphere of freedom of its citizens by means of law. Thus it shall realize
directly nothing but that which belongs to the sphere of law. This is the
conception of the Rechtsstaat, and not that the state shall only apply the
legal order without administrative aims, or even only secure the right of
the individuals. It signifies above all not the aims of the state, but merely
the method of their realization.
This is the formula of Friedrich Julius Stahl,34 founder of the theory
of the Prussian monarchy. The last sentence is the decisive one; it has
been fully accepted by the German liberal theorists. It means, of
course, that neither the origin nor the goals of the law are relevant;
but that the form of a general law gives to every state its legal (Rechts
staat) character. That a conservative monarchist coined this theory is,
of course, understandable; that the liberals adopted it merely expresses
the collapse of German political liberalism in 1812, in 1848, and during
the constitutional conflict with Bismarck in 1862. German liberalism
remained content to defend its rights against the monarchy, particu
larly its property rights, but was no longer concerned with the conquest
of political power. Indeed, as this formula indicates, it had traded po
litical freedom for economic advance and security.35
In contrast, the English doctrine of the rule of law comprises two
different propositions: that Parliament is sovereign, thus possessing the
monopoly of law-making (the democratic legitimation of political
power); and that the legislation enacted will comply with the require
ments of a liberal legal system as defined above. Dicey recognizes the
logical incompatibility of the two statements but believes that ‘‘this
appearance is delusive; the sovereignty of Parliament as contrasted with
other forms of sovereign power, favors the supremacy of the law, whilst
the predominance of rigid legality throughout our institutions evokes
the exercise, and thus increases the authority of parliamentary sov
ereignty/’30 The fact is that Dicey was, and probably still is, correct.
(ly o ) The Concept of Political Freedom
The reason for this does not lie in a kind of pre-established harmony be
tween power and right in the United Kingdom but probably in the
self-restraint of Parliament, which in turn is the result of a functioning
party system and a balanced and stable social structure.
The United States system lies between the two marginal cases of the
Rechtsstaat and the English rule of law7, the two elements often being,
as now7, in a rather precarious balance.
To sum up: The general character of the law and the presumptions
in favor of the right of the individual and against the state play three
roles in modern society: a moral, in that they guarantee a minimum of
freedom, equality and security; an economic, in that they make pos
sible a competitive-contractual society; a political, in that in varying
degrees they hide the locus of pow'er. I should stress here that the
moral function transcends both the economic and political contexts
within which it operates. This is the legal value, the sole legal value,
inherent in a legal system so structured. All other values realized in a
legal system are introduced from outside, namely by power.
* * *
It is clear, I think, that our political, social, and economic life does
not consist solely of rational—that is, calculable—relationships. Power
cannot be dissolved in legal relationships. The dream of the liberal
period was precisely that it could. From the end of the 18th century to
the first half of the 19th this view of a rational society assumed, one
may say, utopian characteristics. All relevant relationships were deemed
to be legal; the law7was to be general in character; the judge was merely
"‘the mouthpiece of the law,” applying it through a logical process of
subsumption.37 Legal positivism is not only, as is commonly taught, the
acceptance of political pow'er as it is, but also the attempt to transform
political and social power relationships into legal ones.
But this, of course, does not work. It never did and never could. If
our social, economic and political life were merely a system of rational,
calculable relationships, the rule of law7 would of course cover every
thing. W hile power can at times be restrained, it cannot be dissolved.
The nonrational element, power, and the rational element, law, are
often in conflict.
The conflict may be resolved in two ways: the general law may, in its
very formulation, contain an escape clause permitting purely discre
The Concept of Political Freedom ( 17 1)
tionary decisions which are not the product of the subsumption of a
concrete case under an abstract rule; or, if power so desires, the genera]
law may be suspended altogether.
I shall consider only the first case. Every legal system employs legal
standards of conduct—statements permitting the agencies of the state
to act in a purely discretionary fashion while outwardly complying
with the liberal tradition of a general law. These legal standards of
conduct may be explicit (that is, written into codes or statutes) or im
plicit (that is, may be interpreted by courts into statutes). One may
perhaps say that power enters rational private law through equity; and
rational constitutional law through prerogative (or some similar term).
I shall first take examples from private law, in order to show that the
principle prevails even in the most rational section of the legal system.
Liberal legal theory was once violently opposed to equity (in the
Aristotelian meaning: as a corrective to rigid general laws). Whether
one reads Selden’s Table Talk38 or Blackstone’s Commentaries,39 or
Kant’s Legal Philosophy40—to mention but a few—equity is denounced
as incompatible with the calculability which is the primary require
ment of liberal law. England, the home of modern European equity,
was at once her gravedigger. According to Maitland, equity had become
since 1875 merely “ that body of rules which is administered only by
those Courts which are known as Courts of Equity.” 41 And in Lord
Eldon’s judgment, “ The doctrines of this court ought to be as well
settled and made as uniform almost as those of the common law, lay
ing down fixed principles, but taking care that they are applied ac
cording to the circumstances of each case.” 42 Similar statements by
other English judges show basic agreement on the necessity of trans
forming equity into a rigid system of law in order to secure the calcula
bility which economic transactions require.
But the rejection of equity is germane only to a competitive eco
nomic system. Equity considerations increase with the increase in
concentrations of economic power and in interventionist activities of
the state.
W e may generally say that equitable rules are and must be applied
where one has to deal with power positions43 W hen an interest ap
proaches monopolistic control, its private power becomes quasi-legisla
tive and therefore public. Since each such interest affects public wel
fare in a unique way, the state can regulate it only through some form
(i j 2 ) The Concept of Political Freedom
of individual measure. This is introduced into the liberal legal system
through the equity approach. The English conspiracy doctrine as ap
plied to restraints of trade, the American concept of “ reasonableness”
as applied to economic combinations, the German doctrine of “ good
morals” as applied to industrial disputes, are all clear evidence of this.
The whole of the German law regarding the legality of strikes and
lockouts is contained in the Civil Code provision that an act which in
flicts damage upon another and violates good morals is a tort. Our
whole anti-trust law is really nothing but the statement that an un
reasonable combination is illegal. Yet how can one rationally define
such standards? They can be illustrated and described but never de
fined. Nor, without risking extreme rigidity, could we seek to do other
wise. The general law therefore operates best when it regulates the be
havior of a vast number of competitors of about equal strength. If it
has to deal with power concentrations it will be replaced by clandestine
individual measures.
Similar methods are employed in the field of public law, appearing in
three sets of problems:
1. No political system will fully uphold the legal value of calcula-

bility and legal security if it deems its own security endangered by it.
Power will thus strive to set aside the juristic notion of freedom.
2. The fundamental presupposition of liberal legal theory is that the
right of one will coincide with the right of others, and that in case of
conflicting rights the state will fulfill its arbiter function through the
application of precisely defined general laws. But quite often the col
liding interests seem to be of equal weight and the conflict can then
be solved only by a discretionary decision.
3. No political system is satisfied with simply maintaining acquired
rights. The juristic concept of freedom—as we have developed it—is
naturally conservative.44 But no system, even the most conservative one
(in the literal meaning of the term) can merely preserve; even to pre
serve it must change. The values that determine the character of the
changes are obviously not derived from the legal system. They come
from outside, but for propagandists reasons they are presented as legal
demands, often allegedly derived from natural law.
To answer the first two of these problems it becomes necessary to de

fine more accurately the amount of freedom which civil rights actually
The Concept of Political Freedom (1 73 )
guarantee. To this end the traditional civil liberties must be classified,
for it would be dangerous to speak of only one right: individual free
dom. W hile all civil rights ultimately go back to this basic philosophi
cal conception, historical development has led to a distinction among
various types of rights with different functions and different sanctions.
Civil rights, as restraints upon power, are necessary as a means of
preserving freedom. This formulation implies two statements: civil
rights are indispensable for the realization of freedom; but civil rights
do not exhaust freedom—they are but one of its elements. Freedom is
more than the defense of rights against power; it involves as well the
possibility of developing man's potentialities to the fullest. Only be
cause we do not trust any power, however well-meaning, to decide what
is good or bad for us, do we insist on a realm of freedom from coercion.
This is the fundamental and inalienable (the so-called negative or
juristic) aspect of our freedom.
But what, concretely, is it that is inalienable? W e may distinguish
three types of traditional rights: personal, societal, and political.
Rights may be called personal if their validity is bound solely to man
as an isolated individual.45 The security of the person, of houses, papers
and effects,46 the right to a fair trial,47 the prohibition of unreasonable
searches and seizures48 do not depend upon man's association with
other men. Their protection is not dependent (or should not be) upon
changes in the socio-economic system, such as the change from com
petitive to organized capitalism, nor upon political expediency. W hat
precisely constitutes a fair trial may be open to interpretation;40 but
reasons of state can never justify inroads into these principles. The
criminal law provisions of our constitution are absolute personal rights;
and probably no country has as many detailed constitutional provisions
concerning these personal rights.50
Societal civil rights can be exercised only in relation to other mem
bers of society. They are, in a proper sense, rights of communication.
Freedom of religion (as distinguished from religious conscience), free
dom of speech, of assembly, and of property are such rights. One limita
tion is inherent in them: the exercise of these rights must not deprive
others of theirs; in the language of Kant the rights of one must coexist
with the rights of others. It is through such general laws as those of
libel, slander and trespass that this coordination is perfected.
There is a demonstrable relationship between personal and societal
(1J4) The Concept of Political Freedom
rights. W hile the personal rights are, so to speak, an end in themselves,
they are also ancillary to the societal rights. Without security of the
person there can be no free communication, since a person subject to
arbitrary arrest and without the prospect of a fair trial will be reluctant
to engage in free communication. But the additional ancillary charac
ter of the personal rights must not lead to the view that they are sub
ject to the inherent limitations of the societal rights.
This seems simple, but the two problems raised above—the conflict
of political power with juristic freedom, and the conflict of two inter
ests—create difficulties that, if conceived solely as legal problems, seem
really insurmountable. The second problem is best illustrated by the
Supreme Court decision in Kovacs v. Cooper,51 in which the Court
upheld a local ordinance forbidding the use of sound trucks emitting
“ loud and raucous’' noises.
But it is the first problem which is the really important one. Feiner
v. N ew York52 is a typical case, appearing in precisely the same form in
every nation: the citizen exercises his right to free speech, the audi
ence protests, disorder ensues, the police are called in, they arrest the
speaker for breach of the peace or for disorderly conduct and thus re
store order. A study of the decisions of administrative or criminal
courts in Germany and France will, as a rule, show that these courts,
like our Supreme Court, uphold the discretionary power of the police
to take such measures as they think fit to prevent disorder. In Ger
many, resistance by the speaker to such police action would be punish
able as “ resistance to the state power," while here the Supreme Court
upheld the conviction for breach of the peace. Thus free speech is
everywhere qualified by the proviso53 that the agent of political power
may determine at his discretion whether he will protect free speech or
side with the power of the mob against it.
Some constitutional lawyers and political scientists detect a decisive
difference between the United States and continental Europe in the
different constitutional formulae: the First Amendment with its state
ment: “ Congress shall make no law . . . abridging the freedom. . . ." as
against the typical continental formula: the right of free opinion is
guaranteed within the framework of the laws.
There is indeed a difference, and there seems little doubt that the
American pattern is preferable. Under our constitutional provision free
dom of the press has developed remarkably better than under the
numerous continental European press laws. But the decisive difference
must be attributed less to different formulae than to more sensitive
attitudes toward civil liberties, particularly on the part of the courts.
Beyond any shadow of a doubt the calculable relation between the
rights of the individual and the power of the state is everywhere gov
erned by an escape clause. In continental Europe it is the so-called
reservation of the law; in the United States it is the “ clear and present
danger" formula.54
The clear and present danger test demonstrates the impossibility of
clarifying the precise meaning of legal standards of conduct. David
Riesman55 goes so far as to assert that the Schenck decision does not
permit the court to weigh the value of free speech against that of any
governmental policy. This is probably an extreme interpretation but
it does seem, in considering the range of decisions from Near v. M in
nesota,56 Board of Education v. Barnette,57 Thomas v. Collins58 to
the Dennis case,59 that the test has been watered down from “ clear
and present" to “ clear and probable" danger, allowing the non-cal-
culable element of political power to assert itself against the calculable
limitation upon that power. Thus power, or “ necessity," or “ reason of
state" cannot be effectively eliminated or restrained by constitutional
law.60
Furthermore, not only do the objectively necessary or alleged require
ments of political power interfere with the rule of general law; they
may even occasion the total suspension of civil liberties. The state of
siege, martial law, emergency powers—these merely indicate that rea
sons of state may actually annihilate civil liberties altogether. Common
to these institutions in most countries is the fact that the discretionary
power of those who declare an emergency cannot be challenged. It is
they who determine whether an emergency exists and what measures
are deemed necessary to cope with it.
Civil rights (personal and societal) are to be distinguished from po
litical rights, though they are closely related. Continental theory fre
quently distinguishes “ human" and “ civil" rights—the former, it is
asserted, are inherent in the nature of man as a free and equal being,
enjoyed by citizens, denizens, and visitors; the latter are derived solely
from the political structure of the state.
(iy6) The Concept of Political Freedom
This is correct if the term “ political structure” is properly de
fined. If it simply says that a citizen has as many political rights as
those wielding political power are willing to grant, it is meaningless.
W hat is really meant is that the nature and extent of political rights
are determined by the nature of the political system—that is, by what
the political system claims to be.
Thus if a political system claims to be a democracy, specific rights
must be implemented. On the whole, there is agreement on the mini
mal basic rights: equal franchise and equal access to all public offices,
and equality of treatment in regard to occupations, professions and
callings.
The rights of the status activus (as these political rights are some
times called) presuppose, as I have mentioned, the personal and so
cietal rights. There can be no formation of the national will on the
basis of equal suffrage without freedom of the person and without free
communication. By definition, therefore, any abrogation of personal or
societal rights necessarily involves an intervention with political rights
—though not vice versa.
* * *
So far, quite traditional problems have been discussed—although it

is hoped that they have been discussed in a more systematic setting
than usual. The problems are traditional because they revolve around
the old formula of citizen versus state, which is primarily thought of in
a context of criminal-law. In this setting civil rights can be, or at least
could be, more or less effectively protected. But in modern society
three new problems arise which are difficult or perhaps impossible to
fit into this theoretical model: the effect upon civil rights of far-reach
ing changes in the socio-economic structure; the application of social
sanctions against dissenters; and the attempt to legitimize positive de
mands upon the state by means of “ civil rights.”
These questions indicate that the juristic notion of freedom covers
only one element of freedom, and cannot include all of political free
dom. The confrontation citizen versus state is inadequate for several
reasons.
If political freedom were mere legal freedom, it would be difficult
to justify democracy as that political system which maximizes freedom.
A constitutional monarchy would do as well, and indeed there are con
tinental historians and political scientists who take precisely this posi
tion and even assert its superiority over democracy. This view we be
lieve to be untenable—but this compels us to define political freedom
more concretely.
Furthermore, juristic freedom is static and conservative, while so
ciety changes. The problem was well stated by Justice Jackson:
[T]he task of translating the majestic generalities of the Bill of Rights,

conceived as part of the pattern of liberal government in the eighteenth
century, into concrete restraints on officials dealing with the problems of
the twentieth century, is one to disturb self-confidence. These principles
grew in soil which also produced a philosophy that the individual was the
center of society, that his liberty was attainable through mere absence of
governmental restraints, and that government should be contented with
few controls and only the mildest supervision over man's affairs. We must
transplant these rights to a soil in which the laissez faire concept or prin
ciple of non-interference has withered at least as to economic affairs, and
social advancements are increasingly sought through closer integration of
society and strengthened governmental controls.®1
Justice Jackson's view, moreover, leads to these doubts: the formula

liberty versus government seems to comprehend two statements: that
individual liberty increases with the decrease of governmental power
(and vice versa); and that liberty has but one enemy: government.
Neither of these implications can be accepted. It is historically impos
sible to maintain that governmental interventionism of itself decreases
the scope and effectiveness of the citizen's freedom. A mere super
ficial acquaintance with history is quite enough to show that there is
no logical connection between the two factors. A less interventionist
Imperial Germany protected freedom far less effectively than a far
more interventionist Weimar Republic. England during the less total
World W ar I was not as sensitive to civil rights as during the more
total World W ar II. In the United States, the Supreme Court deci
sions extending the scope of civil rights protection began in 19 31. The
historical links between interventionism and civil rights are but little
investigated by the historians and political scientists. The theoretical
falsity of the statement that liberty decreases with the increase of gov
ernmental intervention is obvious since the term “ intervention" neither
indicates its purposes nor the interests against which intervention is
directed. The connection between the two situatons is a political-
(iy8) The Concept of Political Freedom
historical one, requiring analysis of each concrete situation, for it is
undeniable that a minimum of intervention—the maintenance of “ law
and order” —is always indispensable to the preservation of individual
rights, so that the very existence of the state is a precondition for their
exercise.
This, in turn, is closely tied up with the second implication of the
formula liberty versus government, namely, that the state is the sole
enemy of liberty. That this is fallacious reasoning should be obvious
from the fact that private social power can be even more dangerous to
liberty than public power. The intervention of the state with respect to
private power positions may be vital to secure liberty.
Thus the juristic notion of liberty is inadequate in the following
respects:
1. The protection of liberty through general laws does not take into
account the content of the laws. The general law may be repressive in
content. A state may brutalize its penal system and, for instance,
threaten the death penalty for all petty crimes. Nothing in the theory
of juristic liberty could possibly prevent this. Even Rousseau, the
fanatic believer in the generality of the law, was compelled to admit62
that the law may create privileges although it must not grant them to
individual persons. Thus we cannot but repeat that the juristic notion
of liberty can guarantee only a minimum of liberty. That minimum
may mean much or very little, depending on factors nonlegal in charac
ter.
2. Even within the scope of the juristic concept of liberty, escape
clauses like the clear and present danger formula permit political power
to prevail over individual rights. Thus Justice Frankfurter’s statement
in the Dennis case that “ [C]ivil liberties draw at best only limited
strength from legal guarantees . . .” 63 adequately formulates our posi
tion.
In short, the juristic notion of liberty, based upon the philosophic

formula that freedom is the absence of restraint, opposes freedom to
necessity, the two allegedly belonging to two different realms. There is
no need here to resume the age-old debate on the correlation between
freedom and necessity, but it seems necessary to restate the stages in
the development of what we call the cognitive concept of liberty in
order to show its political relevance.
The Concept of Political Freedom (m )
The Cognitive Element in Freedom

The first step is to be found in Greek natural philosophy culminat
ing in the philosophy of Epicurus. To him, as to Lucretius, the “ terror
then and darkness of mind must be dispelled not by the rays of the sun
and glittering shafts of day, but by the aspect and the law of nature.” 64
Their problem was to free men from the terror inspired by the super
stitious belief that natural phenomena are due to the arbitrary interven
tion of the Gods—precisely the religious superstition that Plato65 de
sired to maintain and even strengthen in order to keep the masses in
hand. In opposition to this view Epicurus taught that external nature
was governed by necessity, that is, by immutable natural laws. Under
standing of this necessity makes man free, liberates him from the fear
which the phenomena of external nature instil into the ignorant. “ A
man cannot dispel his fear about the most important matters if he
does not know what is the nature of the universe but suspects the truth
of some mythical story. So that without natural science it is not pos
sible to attain our pleasures unalloyed” ;66 and still more precisely,
“ necessity is an evil, but there is no necessity to live under the control
of necessity.” 67 Ever since Epicurus the development of natural sci
ence has occupied a decisive place in the growth of man's freedom; not
only does the understanding of external nature free man from fear,
but, as again indicated by Epicurus, it permits the utilization of natural
processes for the betterment of man's material life. This powerful Epi
curean tradition has continued to our day in the philosophy of Hobbes,
Spinoza, the French enlightenment, and English utilitarianism.68
The second decisive step is the development of Spinoza's psy
chology,69 with its application of the Epicurean principle to the under
standing of man's mind: a man who lives according to the dictates of
reason alone is a free man.70 To be able to live according to reason
man must understand his mind; he must classify his passions, under
stand them, and thereby subdue them. Only a slavish nature is ruled
by passions. Freedom, to Spinoza, is thus insight into necessity.
It is in this scientific tradition that Freud stands. His understand
ing of the instinct of aggression and self-destruction,71 and his analysis
of the need for identification as the emotional tie of one person with
another,72 contain suggestions which have so far hardly been utilized in
political theory. The fundamental proposition which Freud shares with
(i8o) The Concept of Political Freedom
Kierkegaard73 is that our existence is shot through with anxiety. Both
distinguish anxiety (“ dread" in the English translation) from fear; the
latter refers to “ something definite," while anxiety is a state of existence
produced by innocence and thus ignorance. Anxiety, the operation of
the aggressive instinct, and the need for identification of the isolated
human being, are the psychological processes which permit the total
annihilation of freedom in totalitarianism.
Yet it is possible that neither the understanding of external nature
nor the knowledge of the operation of the mind will enable us to come
to grips with necessity. There is no necessary correlation between free
dom and an advanced state of knowledge of external and internal na
ture. The societal arrangements may, indeed, be such that natural
science and psychology may become handmaidens of oppression. W hat
one calls the “ moral lag" expresses this possible developmental di
chotomy.
A third step is necessary: the understanding of the historical process.
If we are to believe historians of history it is Giambatista Vico74 who
first attempted a scientific analysis of the structure of political freedom
in the frame of an historical analysis. The subject of his theory of
history is universal, not national, history. The historical process is no
longer considered a theological but a social one. History is the work of
man75 within a cultural setting, the totality of material culture. History
is the conflict between man, nature, and culture. Since Vico, the con
ception of history as universal history, and of the historical process as
an intelligible development, have become primary concerns in the
analysis of the notion of freedom. Similar ideas, but more mechanistic
ones, have been developed by Montesquieu,76 whose concepts of po
litical structure are related to historical processes. Montesquieu was
the first to develop the notion77 that the actor in the historical process
may by his acts produce consequences which he intended to avoid. It
is he who insisted on the interdependence of all social phenomena,
rejecting attempts to isolate specific features of a social structure and
attribute specific consequences to them.
From Vico and Montesquieu the road goes to Hegel and Marx. Both
accepted the Epicurean-Spinozist formula that freedom is insight into
necessity: one who understands what happens, and why it happens, is
thereby free.78
The cognitive formula, however, is wrong if it is conceived as obedi
ence to an abstract and fatalistic law of history. The historical process
includes man’s aspiration to secure more effective control of his en
vironment, so that historical insight is critical and programmatic. The
real function of the cognitive element is to expose the possibilities for
realizing the human potentialities latent in different social situations.
On the one hand it prevents us from repeating empty time-honored
formulae. W hat is progressive today and conducive to freedom may be
false tomorrow and a hindrance to freedom. On the other hand it curbs
utopian radicalism. Since what man can achieve is bound to the stage
of social development, the realization of freedom is not at the disposal
of man’s free will.
The fate of two key concepts of political theory, sovereignty and
property, will demonstrate the significance of the cognitive element of
freedom.
Today it is fashionable to defame the concept of sovereignty.
Hobbes, in particular, has never been popular in Anglo-American
countries, and Bodin, the creator of the word “ sovereignty,” has been
interpreted to be a mild liberal. Some hold sovereignty responsible for
all the ills of our present age. Nationalism, imperialism, even totali
tarianism are deemed to be direct descendants of sovereignty, with
Marsilius of Padua, Bodin, Calvin, Luther, Hobbes, and, of course,
Hegel, the criminals. W e do not want to raise the problem of how far
a theory—even the most brilliant one—can be held responsible for
political developments, but will assume here that this is possible. It is
clear that this view follows directly from the equation of freedom with
juristic freedom, that is, absence of restraint. Sovereignty of the state
means, obviously, that the monopoly of coercion rests with an insti
tution separate from society, yet connected with it, called the state.
The progressive historical function of sovereignty has never been
doubted, even if there is dispute as to the limits of the state’s coercive
powers. In a period of feudal rule, of exploitation of peasants and cities
by feudal lords, of competing jurisdictions of monarch, vassals, guilds
and corporations, of secular and temporal powers, there arose one cen
tral power: the monarchy. It destroyed the autonomies, created (or at
tempted to create) one administration, one legal system, and trans
formed privileges into an equality of duties, if not of rights. How could
our modern commercial and industrial society have arisen without this
sovereignty which created large economic areas and integrated them
legally and administratively? It was precisely middle class political theo
rists—Bodin, Spinoza, Pufendorf, Hobbes—who insisted on the powers
of the monarch against the privileges and autonomies of estates, cor
porations, guilds, and churches. One may well interpret the French
revolution of 1789 not as a reaction to the monarch's misuse of his
absolute powers, but rather to his failure to use them. The theories of
the Marquis d’Argenson, the Abbe Dubos, of the Physiocrats and par
ticularly of Rousseau are indeed attempts to reconstitute the unity and
efficiency of the central power in the state, be it monarchical or demo
cratic, so that the freedom of the nation can be effectively realized.
The rise of the liberal theories (such as Locke's) is understandable
and has meaning only if the monopoly of the state’s coercive powers is
no longer challenged, so that restraints upon sovereignty will no longer
lead to its disintegration. I have elsewhere stated the problem of mod
ern political theory in these terms:
The problem of political philosophy, and its dilemma, is the reconcilia

tion of freedom and coercion. With the emergence of a money economy
we encounter the modern state as the institution which claims the mo
nopoly of coercive power in order to provide a secure basis upon which
trade and commerce may flourish and the citizens may enjoy the benefit
of their labor. But by creating this institution, by acknowledging its sov
ereign power, the citizen created an instrument that could and frequently
did deprive him of protection and of the boon of his work. Consequently,
while justifying the sovereign power of the state, he sought at the same
time to justify limits upon the coercive power. The history of modern
political thought since Machiavelli is the history of this attempt to justify
right and might, law and power. There is no political theory which does
not do both things.79
In international relations, the concept of state sovereignty fulfilled

similar functions.80 By attributing sovereignty to the state, formal
equality is attributed to all states and a rational principle is thus intro
duced into an anarchic state system. As a polemical notion, state sov
ereignty in international politics rejects the sovereign claims of races
and classes over citizens of other states, thus limiting the state’s power
to people residing in a specific territory. The notion of state sovereignty
is thus basically anti-imperalist. The equalizing and limiting functions
of this doctrine appear most strikingly when contrasted with the Na
tional Socialists’ racial imperialism (which rejected state sovereignty
T h e Concept of Political Freedom (183)
for racial supremacy) and with the doctrine of the sovereignty of the
international proletariat, represented by the Third International.
Thus sovereignty in the modern period, though it formally appeared
as the negation of the juristic concept of freedom, was in reality its
very presupposition.81
Quite identical problems arise in connection with the property con
cept—a concept fundamental in every political theory. There is an al
most universal agreement in political theory on the supreme signifi
cance of private property. But why is private property often raised to
the rank of a natural right? W hy should it be treated with such rever
ence, even in the work of the early Marx?82
It seems clear that it is conceived, throughout the history of social
and political thought, as an instrument for the realization of the good
(or at least the tenable) life. This is clearly Aristotle’s position,83 which
is carried on in the whole medieval tradition.84 It is equally the position
of the more modern political thinkers—of Bodin, Spinoza, Hobbes,
Kant and Hegel—whether they believe property to be a natural right or
a grant by positive law. The instrumentalist character of property is
probably the strongest link among these varied political theories. The
connection of property and liberty is, of course, most candidly stated
in Locke’s theory, where liberty appears as inherent in the overall con
cept of property. But property is defined as labor-property, and pos
sessory theories of property are thus rejected, the legitimation of prop
erty resting in the transformation of external nature, particularly land,
by the creative activity of man. It is precisely the labor theory of prop
erty which demonstrates its instrumentalist role and it is here a matter
of indifference that Locke drew no consequences from his own theory,
which he merely intended as a legitimation of capitalist property. But
the recognition of the instrumentalist nature of property in regard to
liberty makes it obviously necessary to redefine the social function of
property in each historical stage, and thus to distinguish clearly be
tween various types of property and of property-owners.85 If property is
to serve freedom, and if freedom pertains to man only, then corporate
property, while it may or may not be necessary socially, cannot claim to
be a civil right of the same rank as freedom of religion and communi
cations. Similarly, the substrata of the property right—land, consump
tion goods, production goods—may require different treatment.
Most of the continental civil rights catalogues thus make a clear dis
tinction between property and other civil rights, the protection of the
latter being far more stringent than that of the former.86 One very
simple consideration will make clear the instrumentalist role of prop
erty: all constitutions permit the condemnation of private property
with adequate compensation. Yet no civilized constitution could pos
sibly permit the state to do away with a person’s life or liberty for pub
lic purposes even with more than adequate compensation. The value
of political freedom is absolute; that of property is merely relative to it.
Thus the tasks of a political theory concerned with man’s freedom are
to analyze whether property fulfills its function as an efficient instru
ment of freedom, and to discover what institutional changes are neces
sary to maximize its effectiveness.87
To sum up: Insight into the operation of external nature permits
man to master nature. Our enlarged knowledge of man’s psyche per
mits us to understand the psychological processes activating the anx
iety which deprives him of freedom and tends to make him a slave to
authoritarian and totalitarian leaders. Our understanding of the his
torical situation permits us to adjust our institutional framework to
the increased knowledge of nature and of man.
The Volitional Element in Freedom
The above formula indicates, however, that neither the juristic nor
the cognitive element of freedom is really exhaustive. Law limits
political power; knowledge shows us the way to freedom; but man can
actually attain freedom only through his own efforts. Neither God nor
history grants freedom to him. In this insight rests the theoretical
formulation of democracy as that political system which permits the
maximization of political freedom. The volitional or activist element
is as indispensable to the constitution of political freedom as are the
juristic and cognitive elements. W e have said before that if political
and juristic freedom are equated no case can be made for democracy
as that political system w'here, supposedly, political freedom is best
preserved, and that the constitutional monarchy might then be as good
an institution—if not better.
Despite Aristotle’s dislike of democracy, some kind of active partici
pation in politics is to him the precondition for citizenship. This
minimum he defines as a share in “ the deliberative and judicial func
tions/'88 The freedom created by the Polis89 can thus be attained
solely through active participation in its politics—even if, for reasons
of expediency, Plato and Aristotle deny full participation to the masses.
In our terms, some kind of identification through action is necessary
to prevent the total political alienation of the citizen.
This assumes, of course, a value judgment, namely the undesirability
of political alienation. This is by no means shared in the history of
political thought. The Epicurean school (Epicurus, Lucretius, Hobbes
and many others) took the opposite point of view: the undesirability
of political participation, thereby frankly admitting that political
power, whatever its origin and form, is and will always remain a force
hostile or alien to man, who should find his satisfaction not in a
political system—which provides merely the outer frame of order—but
rather outside it. Political Epicureanism may indeed be a necessary
attitude in periods where two evil principles compete, and a third
principle has no prospect of asserting itself.90 The homo politicus may
indeed then withdraw and cultivate his garden or his mind. As a rule,
however, Epicurean attitudes will probably be expressions of either
cowardice or indifference, playing directly into the hands of those bent
on appropriating political power for their own ends. Whether or not
one believes political power is alien to man, it determines his life to
an ever increasing extent; thus the need for participation in its forma*
tion is imperative even for those who prefer the cultivation of indi*
vidual contemplation.91
To stress merely the volitional aspect of freedom creates as dan
gerous a situation as does exclusive concentration on the juristic or the
cognitive aspect. To define political freedom simply as individual will
implies the negation of the obligations which we have toward ouf
fellow man: one cannot assert one’s will at the expense of another, nor
attain one's own perfection by destroying another's. The protection of
minorities and of dissenting opinions is ruled out if the activist element
alone is deemed the equivalent of freedom. The juristic notion, there
fore, cannot be dispensed with.
If we stress the supremacy of political action regardless of the his
torical situation within which the will must be realized, we arrive at
a utopian putschism—the view that man can, in each historical stage,
or rather regardless of the historical stage, realize his full freedom
through his action. Bakunin, very strongly influenced by Fichte’s
philosophy,92 espoused revolutionary action for its own sake; while
Mussolini preached the virtue of a “ heroic life” in contrast to the
sordidness of bourgeois security.
Yet the element of political action by the individual is as indispen
sable as are the other two. Man can realize his political freedom only
through his own action, by determining the aim and methods of
political power. A monarch or a dictator may give him freedom—but
he can as easily take it away. History may present magnificent oppor
tunities for freedom, but they may be missed if one does not act or
fails to act adequately.
Thus the democratic political system is the only one which institu
tionalizes the activist element of political freedom; it institutionalizes
man’s opportunity to realize his freedom and overcome the alienation
of political power. All three elements of the notion of political freedom
are given a chance in the democratic system. The rule of law (expressed
in civil rights) prevents the destruction of minorities and the oppres
sion of dissenting opinion; the mechanism of change (inherent in the
democratic system) allows the political system to keep pace with the
historical process; the need for self-reliance of the citizen gives the
best insurance against his domination by anxiety. Political action
obviously involves the possibility of a choice between approximately
equal alternatives. Only with such alternatives can the choice—and
hence the action—be free. It is this which, in turn, constitutes the
connecting link between the volitional and juristic aspects of freedom.
The citizen can choose between alternatives only if he can choose
freely; that is, only if his personal and societal rights are protected.
The stability of the democratic system thus depends upon these
three elements: the effective operation of the rule of law; the flexibility
of its political machinery to cope with new problems; and the educa
tion of its citizens.
The Present Crisis in Political Freedom

All three elements of political freedom are equally important and
therefore none can be dispensed with. All three are in danger.
That none of them exists in totalitarian societies needs no comment
here. In totalitarian states the individual-state relationship is reversed.
There is no longer a presumption in favor of right and against coercion;
rather there is a discretionary authorization of the agencies of the state
to act as they see fit. Increased knowledge of man and nature is not
used for the betterment of man’s fate; rather, it assists in the manipula
tion of oppression. The active participation of the citizen in the forma
tion of the national will is a sham. The basic elements of the structure
of totalitarianism are so well known that nothing need be added here.
Far more difficult, however, is the analysis of our system of democracy.
In the present period our attention is focussed on the juristic ele
ment of freedom—on the operation of the rule of law, particularly as
it relates to personal freedom.
W e have drawn attention to the fact that in the modern period the
traditional sanctions of the criminal law are supplemented by socio
economic ones which may undermine the traditional guarantees. The
problem appears in the so-called Loyalty Program and the Taft-Hartley
Act.93
In the Loyalty Program94 two problems naturally arise: the dismissal
of civil servants suspected of disloyalty, and the refusal to appoint sus
pects. There can be no doubt, of course, that a government has the
right, indeed the duty, to dismiss disloyal employees. The major prob
lem is how far the rights of the employee are to be protected: how
loyalty is to be defined and what procedures are to be adopted. Since
no criminal charge is involved, it may be correct to say that the pro
tective clauses in the Sixth Amendment do not apply; the dismissed
employee does not, therefore, enjoy the guarantee of a fair trial, so that
“without a trial by jury, without evidence, and without even being
allowed to confront [his] accusers or to know their identity, a citizen
of the United States” may be “ found disloyal to the government of the
United States.” 95 This may well be law; one can argue that no “ civil
right” is involved and that the discretion of the executive agencies
cannot be questioned. It may also be legally true that nobody has a
right to a specific government position and that, therefore, executive
discretion in the exercise of the government’s hiring power cannot be
challenged. Yet one of the political principles upon which democracy
rests is that of equal access to all public offices. No doubt this principle
permits the government to exclude disloyal persons from employment.
But there remains the problem of protecting the rights of applicants
against arbitrary action.
Similarly, it may also be legally accurate—as the Supreme Court
maintains90—that trade unions which are private associations should
have no access to the National Labor Relations Board if their officers
fail to file the non-communist affidavit required by the Labor-Manage
ment Relations Act of 1947 97
Yet our analysis of the relation between the three types of civil rights
—personal, societal, and political—attempted to show that even the
justified denial of societal and political rights need not and should not
lead to a restraint upon personal rights, which are not (or should not
be) bound to changes in the economic, social or political structure. The
requirement of a fair trial is the indispensable minimum of civil
liberties.
That minimum is now increasingly denied by socio-economic sanc
tions which are probably not unconstitutional. From this it seems to
follow that the juristic conception of liberty can no longer adequately
perform its function. A few years ago one could indeed regard as ade
quate the classical interpretation of the personal rights as protecting
the physical integrity of the individual from arbitrary action by the
state. This is no longer possible today. Governmental sanctions against
economic status are now of infinitely greater importance. The size of
government employment has grown tremendously, and if we add the
private industries working for the government—where similar rules
seem to apply—we must conclude that in many cases the application
of economic sanctions means a sentence of economic death inflicted
without a hearing.
Perhaps worse than the possibility of an economic death penalty are
the psychological-social consequences of governmental action. Social
ostracism may well be the result of firing—or refusing to hire—a person
because of suspected disloyalty. In a period of growing political con
formism the stigma attached to these governmental actions may trans
form the citizen and his family into outlaws, proscribed by his neigh
bors, shunned even by his friends.
It seems clear, therefore, that the traditional notion of juristic free
dom can no longer cope with the new phenomena. Juristic freedom,
indispensable though it is, guarantees merely a minimum. And this
minimum, once covering a broad aspect of our freedom, although per
haps for a relatively small stratum of the people, is steadily shrinking.
Similar difficulties exist in the operation of such societal civil rights
as the right of communication. The Supreme Court’s decision in
Kovaks v. Cooper,98 the loudspeaker truck case, illustrates the problem.
Justice Black, in his dissenting opinion, considered the loudspeaker
van as the communication medium of the little man, permitting him
to compete with highly organized and concentrated media of com
munication. But even assuming that Justice Black’s view had prevailed
and the local ordinance had been voided, the free and equal use of
societal rights would still not have been possible. The economic im
balance cannot thus be restored. The problem appears in various forms
and has given rise to the formulation of a new type of civil right, the
so-called “ social rights” designed by various means—such as interven
tion of the state in behalf of the economically weak, as in various
types of social security legislation, or recognition of mass organizations
by the state, as in labor legislation—to restore a balance of social forces
jeopardized either by the concentration of power on the one side or by
awakening of political and social consciousness on the other. It is
extremely doubtful whether it is wise to designate as civil rights positive
demands upon the state—whether for social security, trade union recog
nition, or even planning. These and similar demands upon the state
have their legitimation in their social utility, which must be concretely
demonstrated. Personal, societal and political rights, by contrast, con
stitute the very essence of a democratic political system and need no
demonstration as to their social usefulness. But the psychological
attraction of natural right doctrines, with their presentation of specific
interests as natural ones, is such that the category “ social rights” will
probably soon find general acceptance. Whatever language we choose,
however, the fact is that the exercise of civil (and political) rights re
quires a fair degree of equality in the control of and access to the
media of communication.
These problems may not appear so depressing if one considers
political power not as an alien power (as expressed in the formula
citizen versus state) but as one’s own—that is, if the volitional or
activist element of freedom is recognized as being of equal importance
with the two others. This may be expressed in the formula: no freedom
without political activity. Yet it is clear—and this is the eternal contri
bution of individualist political thought—that no matter what the form
(igo) The Concept of Political Freedom
of government, political power will always be to some degree alienated.
The theories of Plato and Rousseau are thus utopias. Postulating com
plete identity between the citizen and the political system, they fail
to take into account the fact that the conditions under which such
identification can be achieved have never been realized in history. The
two alternatives—the wisdom of Plato’s philosopher-king, and the com
plete social and moral homogeneity of the Rousseauist society—are but
dreams, though they be potent ones. The most exalted ruler is subject
to passions; every society is charged with antagonisms. Even the most
democratic system needs safeguards against the abuse of power. Yet
in its tendency to minimize the alienation of political power democracy
makes possible a fair balance between the interests of the individual
and the raison d’etat.
But there is equally no doubt that today the citizen’s alienation from
democratic political power is increasing—in Europe, at tremendous
speed, more slowly, but still discernibly, in the United States. Psycho
logically, this fact is usually designated as apathy. The term is useful
if one does not forget that three states of mind may thus be designated:
the literal meaning, the “ I-don’t-care” attitude; the Epicurean ap
proach, which holds that political life is not the area in which man can
or should attempt to realize his potentialities; and the total rejection
of the political system without a chance of effectively articulating an
alternative. In varying degrees all three types of apathy play into the
hands of demagogues, and all may lead to caesarism.
The last type, the most dangerous, is the result of the malfunction
ing of the democratic state. Its symptoms and causes have often been
analyzed: the growing complexity of government; the growth of
bureaucracies in public and private life; the concentration of private
social power; the hardening of political parties into machines which,
because of the high cost of politics, tend to exclude newcomers from
the political market.
These difficulties are enhanced by many of the remedies proposed.
There is the assertion that democracy is “ mass-participation in politics”
and that the structure of a system of political representation makes a
sham of participation. Some propose “ occupational representation,”
a corporate system as a substitute for political democracy. But it need
not be demonstrated here that corporate representation theories are
mere fig leaves for dictatorships.
Others, more modest, want to transform “ political” democracy into
true “ economic” democracy, or at least to introduce “ democratic
principles” into the organization of the economy and the executive
power. They overlook the fact that the theory of democracy is valid
only for the organization of the state and its territorial subdivisions,
never for any specific function. There is but one democracy, political
democracy," where alone the principles of equality can operate. Plans
for “ economic democracy” or the German trade union demand for
“ co-determination” in the economy may be useful, but they cannot be
legitimized as democratic.
Still others, frightened by the growth of government bureaucracies,
desire to democratize the administration. This is clearly desirable if to
“ democratize” means—as in post-1918 Germany—to eliminate un
democratic and anti-democratic elements from the bureaucracies. If it
means, however, to reform the executive branch of the government by
destroying the hierarchic principle or by letting “ interest groups” par
ticipate in the making of administrative decisions, then such reforms
not only have nothing to do with democracy but may even create new
threats to it. The democratic principles of equality cannot operate in
a bureaucratic structure, where the weight of a clerk must necessarily
be less than that of an executive, and where responsibility has meaning
only as that of an inferior to a superior. Demands for equality in
bureaucracies and for responsibility downward within the bureaucratic
structures tend to destroy an orderly administration.
Still more fateful is the second alternative: the participation of
interested groups in the making of administrative decisions—what the
Germans call functional, as against territorial, self-government. Labor
administration is thus defined as democratic if the interested employer
and labor groups have a voice in the decision-making process, so that
the state, represented by a civil servant, appears as a kind of honest
broker between opposing interest groups. This is a fairly widespread
pattern of administration in Europe—but a dangerous one.100 The
danger to democracy of these and similar devices lies in the following.
The agreement of opposing interest groups on specific problems does
not by the mere fact of their compromise necessarily coincide with the
national interest. If such agreements are reached in fields where the
government has no jurisdiction, this is, indeed, the best method of
decision-making, for in such a case the government expresses by its
hands-off policy the view that national interests are not necessarily
involved. If the government has assumed jurisdiction, however, its
reliance on agreement between interest groups and its withdrawal into
the role of broker between the interests may amount to a dictate of
these interests over the nation. In this recognition lies the great con
tribution of Rousseau: the volontc generale (the national interest) is
not necessarily the result of a mechanical addition of particular wills.
Indeed, such an addition may, if raised to a political status, pervert the
general interest of the community. If, therefore, a nation has decided
that a social activity needs governmental regulation, full responsibility
should rest upon the government (the executive branch) as the de
cision-making body, and responsibility should not be shifted to interest
groups by incorporating them into the administrative machinery.
The incorporation of interest groups into the administrative system
may actually have the effect of weakening what some call mass-partici
pation but what is better designated as spontaneous responsiveness to
political decisions. For when the interest groups become semi-public
bodies, part and parcel of the state machine, their independence lost,
spontaneous responsiveness to policy decisions is weakened. The social
organization turns into bureaucratic, semi-state structures, incapable
of acting as critics of the state.
Thus the essence of the democratic political system does not lie in
mass participation in political decisions, but in the making of politically
responsible decisions. The sole criterion of the democratic character
of an administration lies in the full political responsibility of the ad
ministrative chief, not to special interests, but to the electorate as a
whole. H ie model of a democracy is not Rousseau's construct of an
identity of rulers and ruled, but representation of an electorate by
responsible representatives. Representation is not agency; the repre
sentative is not an agent, acting on behalf of another’s rights and
interests, but one who acts in his own right although in another's (the
national) interest. Political action in a democracy is the free election
of representatives and the preservation of spontaneous responsiveness
to the decisions of the representatives. This, in turn, requires that social
bodies such as political parties and trade unions remain free of the
state, open, and subject to rank and file pressure; and that the elec
torate, if faced with serious problems, be capable of spontaneously
organizing itself for their solution.
These are simple considerations—but they seem to be largely for
gotten. Many of the suggested remedies against bureaucratic absolut
ism seem actually to strengthen anti-democratic tendencies. In short,
only within a specific context is the growth of governmental bureau
cratic structure a threat to democracy.
A further and deeper threat arises from the growing antagonism be
tween the potentialities of our historical situation and their actual
utilization. Technological progress (the conditio sine qua non of cul
tural progress) is used today largely for armaments. No threat to the
political system of democracy can arise if the fruits of advancing tech
nology are diverted from normal use for a relatively short period. But
our historical experience tends to show that a long-range postponement
of expectations is possible only in a wholly repressive system. It is
difficult to be exact in determining either the time span or the in
tensity of the conflict between the potential and the actual. But the
principle must be clearly seen; democracy is not simply a political
system like any other; its essence consists in the execution of large-scale
social changes maximizing the freedom of man.
Only in this way can democracy be integrated; its integrating ele
ment is a moral one, whether it be freedom or justice. This moral
legitimation is perhaps most eloquently expressed in the Prometheus
myth which Protagoras expounds to Socrates:101 “ After a while the
desire of self-preservation gathered them into cities; but when they
were gathered together, having no art of government, they evil en
treated one another and were again in process of dispersion and
destruction. Zeus feared that the entire race would be exterminated,
and so he sent Hermes to them, bearing reverence and justice to be
the ordering principles of cities and the bonds of friendship and con
ciliation. Hermes asked Zeus how he should impart justice and rever
ence among man: Should he distribute them as the arts are distributed;
that is to say, to a favored few only___ T o all/ said Zeus, ‘I should like
them all to have a share; for cities cannot exist, if only a few share in
the virtues. . . / ”
But there is opposed to this a second integrating principle of a
political system: fear of an enemy. Fascist political thought102 asserts
that the creation of a national community is conditioned by the exist
ence of an enemy whom one must be willing to exterminate physically.
Politics thus denotes not the construction of a good society but the
annihilation of an enemy. Anything—religion, ait, race, class antagon
isms—may be or may become political.
If the concept “ enemy” and “ fear” do constitute the “ energetic
principles” 103 of politics, a democratic political system is impossible,
whether the fear is produced from within or from without. Montes
quieu correctly observed that fear is what makes and sustains dictator
ships. If freedom is absence of restraints, the restraints to be removed
today are many; the psychological restraint of fear ranks first.
It is the existence and manipulation of fear that transforms a people
into a mob. The anti-democratic theories of de Maistre, Bonald,
Donoso Cortes, Spengler and a host of others assert that democracy
must, by its inner logic, degenerate into mob rule. Such necessity is a
myth, very often promoted by those who wish to demonstrate the
superiority of dictatorship. But the transformation from democracy
into dictatorship seems to arise when the political system discards its
liberal element and attempts to impose a creed upon its members,
ostracizing those who do not accept it. This will be successful if, in
John Dewey’s words, we attain the “ stage of development in which a
vague and mysterious feeling of uncertain terror seizes the populace.” 104
Notes
1. This article is a continuation of m y paper “ Approaches to the Study of Politi
cal Power,” reprinted in this volume. A German version, in an abbreviated form,
was published under the title “ Zum Begriff der Politischen Freiheit,” Zeitschrift
fiir die Gcsanite Staatswissenschaft 25 ( 1 9 5 3 ) . Parts of it were read as papers in
Arthur W . M acmahon’s Columbia University Seminar on T he State, and before the
Twelfth Symposium on Science, Philosophy and Religion, N ew York ( 1 9 5 3 ) . T he
discussions provoked bv the papers helped greatlv in the clarification of mv ideas.
2. T he preceding paragraphs form the transition from my article “ Approaches
to the Study of Political Power,” supra note 1 .
3 . See Humboldt, Ideen zu einem Versuch die Grenzen der Wirksamkeit des
Staates zu Bestimmen c. 16 (18 5 1).
4. On this, see particularly Corwin, Liberty Against Government— The Rise,
Flowering and Decline of a Famous Juridical Concept (1948).
5. Montesquieu’s formula, however, has a certain ambiguity. See my Introduc
tion to The Spirit of the Laws, reprinted in this volume.
6. See Hegel, Philosophy of Right $ 5 Addition (Knox transl. 1942).
7. This, most certainly, was not the view of Plato, at least not in the Republic.
But in the Aristotelian political philosophy, as revealed in his discussions of the
rule of law in his Politics, Ethics and Rhetoric, the individualistic element begins
to enter. Plato’s architectonic or organic conception of justice meant that the indi
vidual can have no claim against the social whole. Aristotle, in contrast, defines
justice as distributive, as the restoration of proportionate equality, and he is thus
compelled to consider the claim of man against man as an individual. Aristotle an
ticipates an individualistic conception, but for him the criterion of justice is still the
order of the Polis. T he history of the growth of the competing anti-Platonic indi
vidualistic conception initiated by the Sophists, taken up by Epicurus and the
Sceptics, and transformed by the Stoics, is too well known to deserve another treat
ment here, see Sabine, A History of Political Thought, c. 8 (rev. ed. 1950), but one
may say that with Aristotle’s death man’s history as an individual begins. See T am ,
Hellenistic Civilization 69 (1927). Cicero’s legal philosophy is probably the first
full-fledged individualistic-Stoic presentation of a natural law doctrine which, in
Christianity, was extended and deepened as w'ell as narrowed and diverted into the
spiritual realm— the equality of souls before God.
8. This is obvious in the case of the individualistic-liberal theories, since they
have been conceived with this aim in mind. But it applies equally to the indi
vidualistic-absolutist theories of Hobbes and Spinoza. Both assert that the indi
vidual, threatened in the state of nature, is driven by the law' of self-preservation to
organize a state to which he surrenders his natural freedom. Both writers, however,
qualify their radicalism: Hobbes by constructing the social contract as a kind of
business agreement obligating the sovereign to maintain peace, order, and security,
the contract lapsing wrhen the sovereign fails to cany out his duty; Spinoza by
identifying right and might, a formula which permits every social group to trans
form itself from an alienus iuiis into a sui iuris and thus to become sovereign.
9. See Kem , Gottesgnadentum und Widerstandsrecht im frtiheren Mittelalter
16 1-2 8 4 , 3 1 0 - 1 2 , 3 6 7 - 7 1, 394-96, 4 1 2 - 1 5 , 4 3 2 -3 4 (19 14 ). See also Magna Carta,
c. 6 1.
10. See on this my two papers: “ Types of Natural Law ” and “ On the Limits of
Justifiable Disobedience,” both reprinted in this volume. For the sake of accuracy it
may be wise to stress that civil liberties in Great Britain owe probably less to either
the Thom istic or the Lockean system than to the common law conception of his
toric rights of the Englishman and the techniques and the skill of the common
lawyers.
1 1 . Plato, Laws, * 7 1 3 - 1 5 (Jow'ett transl. 18 7 1).
12 . Aristotle, Ethica Nicomachea, Bk. 5, c. 9, * 1 1 3 7 * (Ross transl. 1925).
1 3 . A detailed analysis of this problem appears in my dissertation The G ov
ernance of the Rule of Law (unpublished thesis in London University Library,
1936).
14. See 1 Malberg, Contribution & la Th6orie G6n6rale de l’Etat 289 (1920).
15 . Rousseau, Contrat Social, Bk. 2, c. 6.
16 . 1 Austin, Lectures on Jurisprudence 94 (5th ed. 1929).
17 . I a m not concerned w'ith the intellectual history of this theory from Plato
and Aristotle to the Stoics, and to the Thom istic system, and from there to the
Descartian-Newtonian philosophy, but rather w'ith its actual functions.
18 . As in England and France.
19. This is clearly demonstrated in the rider to the appropriation bill denying
salaries to Lovett et a1 . See United States v. Lovett, 328 U .S. 303 (1946).
20. Despite their latinity, the rules w’ere born only in the 18th century. See Hall,
“ Nulla Poena Sine Lege,” 47 Yale LJ. 165 (19 37).
2 1. “ Retroactivity is the greatest crime the law' can commit; it is the tearing up
of the social pact, the annullment of the conditions by virtue of which society may
demand obedience from the individual. . . . Retroactivity takes away from the law
its character; the retroactive law is no law'.” W ith these words did one of the
apostles of liberalism, Benjamin Constant, attack retroactivity. L e Moniteur Uni
verse!, June 1, 1828, p. 754, col. 3.
22. Today, the rule against retroactivity has virtually a meaning only in criminal
law. On the American doctrine sec Corwin, op. cit. supra note 4, at 6 0 -6 1.
23. These principles are equally applicable to common law. I have attempted to
show this in my London dissertation, supra note 13 . The ratio decidendi of the
judicial decision fills the role of the code or statute; English judges deny that they
create new law and assert that they merely apply the general principle contained in
the ratio decidendi. For important statements on this problem see Vinogradoff,
Common Sense in Law (2d ed. 1946); Goodhart, “ Precedent in English and C on
tinental Law ,” 50 L.Q. Rev. 4 (1934).
24. The following is based on my article “ Der Funktionswandel des Gesetzes
im Recht der biirgerlichen Gescllschaft,” in Z eitschiift fin SoziaJforschung 542
(» 937 )-
25. rrh e one case which I could discover illustrates well the ethical significance of
the general principle. In Rex v. Earl of Crewe, [19 10 ] 2 K .B . 576, approved in
Sobhuza II v. M iller, [1926] A .C . 518 , 524 (P.C.), the Court had to deal with the
proclamation of a Colonial High Commissioner for detention of a native under an
Order in Council based upon the Foreign Jurisdiction Act, 53 & 54 V iet., c. 37
(1890), by which the Habeas Corpus Act was suspended. Farwell, L. J., in giving
the judgment, said: “ The truth is that in countries inhabited by native tribes who
largely outnumber the white population such acts, although bulwarks of liberty in
the United Kingdom, might, if applied there, well prove the death warrant of the
whites,” id. at 6 15 , thus admitting the legality of suspending the Habeas Corpus
Act not only generally, but also “ in respect of a particular individual,” id. at 6 16 ;
and Kennedy, L .J., adds that the Proclamation is “ 4a privilegium’— legislation
directed against a particular person, and generally, as I hope and believe, such legisla
tion commends itself as little to the British legislators as it did to the legislators of
ancient Rome . . . , ” id. at 628, while Rowlatt, for the defense, pointed to the re*
lationship between the Proclamation and a bill of attainder, id. at 583-88.
T he Supreme Court decision United States v. Lovett, 328 U .S. 303 (1946) ap-
plies the very same principle not only to legislative deprivation of the freedom of
named individuals but to deprivation of every right.
26. Cicero, “ Pro Cluentio” in The Speeches of Cicero J 53, * 14 6 (Hodge transl.
1927).
27. Voltaire, “ Pensees sur le gouvernement” in 23 Oeuvres Completes 526
(Gam ier ed. 1879).
28. See W eber, W irtschaft und Gesellschaft 174 (1922).
29. See W eber, The Protestant Ethic and the Spirit of Capitalism 17 (Parsons
transl., 2d ed. 1950).
30. See particularly 1 Adam Smith, A Theory of Moral Sentiments, Part 3, c. 3
(5th ed. 17 8 1).
3 1. See Pound, The Spirit of the Common Law 46 (1925).
32. T lic formula (according to Corwin, op. cit. supra note 4, at 13 ) was coined
by Harrington, Harrington, Oceana 37 (Toland ed. 1747), who ascribes it to Aris
totle and Livy. Cicero uses much the same term.
33. According to Rudolf Gneist the word Rechtsstaat has been coined by Robert
von M ohl, 1 Geschichte und Litcratur der Staatswissenschaften 296 (18 55). On the
differences between Germany and England see Burin, The Rule of Law in German
Constitutional Thought: A Study in Comparative Jurisprudence (unpublished thesis
in Columbia University’ Library, 19 53).
The Concept of Political Freedom f i g 7)
34. 2 Stahl, Rechts- und Staatslehre 1 3 7 (3d ed. 1878).
35. Robert von M ohl himself, see note 33 supra, however, did not accept the
Stahl formula. T o him, the character of a state as a Rechtsstaat is equally deter
mined by the political and social goals expressed in the legal system. His view did
not find acceptance.
36. Dicey, Introduction to the Study of the Law of the Constitution 402 (8th
ed. 1 9 1 5 ) .
37. Thus Jeremy Bentham demanded a code because it “ would not require
schools for its explanation, would not require casuists to unravel its subtleties. It
would speak a language familiar to everybody; each one might consult it at his need.
. . . Commentaries, if written, should not be cited. . . . If a judge or advocate thinks
he sees an error or omission, let him certify his opinion to the Legislature,” “ Gen
eral V iew of Complete Code of Laws” in 3 Bentham, W orks 2 10 (Bowring ed.
1843). W h at Bentham advocated, the French carried out. See Geny, MSthode
d’Interpretation et Sources du Droit Priv6 Positif 77, 84 (2d ed. 19 32), and 1 Mal-
berg, op. c it. supra note 14 , at 7 19 . T he French forbade the judges to interpret
laws and created, in 1 7 9 0 , the r6fer6 legislate, a mandatory of the legislative power,
to interpret ambiguous provisions of law (abolished only 18 2 8 -18 3 7 ) . T h e “ en
lightened despots” Frederick II of Prussia and Joseph II of Austria flatly forbade
legal interpretations of laws; a Bavarian instruction of 1 8 1 3 , probably drafted un
der the influence of Paul Johann Anselm Feuerbach, forbade officials and private
scholars the writing of commentaries to the Bavarian penal code. See Radbruch,
Feuerbach 85 (1934 ). Savigny took the same line.
38. See Table Talk of John Selden 43 (Pollock ed. 1927).
39. See 1 Bl. Comm. * 62.
40. See Kant, Philosophy of Law 51 (Hastie transl. 1887), where equity is de
fined as a “ dumb goddess who cannot claim a hearing of right. Hence it follows
that a Court of Equity, for the decision of disputed questions of right, would in
volve a contradiction.”
4 1. Maitland, Equity 1 (Chaylor and W hitaker ed. 1928).
42. Gee v. Pritchard, 2 Swan. C h . 402, 4 14 , 36 Eng. Rep. 670, 674 (18 18 ).
43. But not only there. There is a second set of circumstances which I do not
discuss here: the problem of colliding interests of equal value to society (e.g.,
divorce law).
44. Thus, correctly, Corwin, op. cit. supra note 4, at 6.
45. N ot quite happily, Professor Freund calls them “ passive liberties.” See
Freund, On Understanding the Supreme Court 23 ( 1 9 4 9 ) .
46. US. Const. Amend. IV .
47. US. Const. Amend. II, VI.
48. US. Const. Amend. IV.
49. See the statement on principles by Justice Cardozo, Palko v. Connecticut,
302 U.S. 3 19 ( 1 9 3 7 ) .
50. In light of this the Rabinowitz decision, covering unreasonable searches and
seizures, is very hard to take. United States v. Rabinowitz, 339 U .S. 56 (1950 ).
5 1. 336 u .s . 77 (1949)-
52. 340 U .S. 3 15 (19 5 1)-
53. But for the United States, consider the more favorable decisions, Terminiello
v. Chicago, 337 U .S. 1 (1949), and Thomas v. Collins, 323 U .S. 5 16 (1945), and
the discussion in Chafee, Free Speech in the United States 4 0 9 -35 (19 4 1).
54. S c h e n e k v . U n i t e d S t a t e s , 2 4 9 U . S . 47 (19 19 ).
f i g 8) The Concept of Political Freedom
55. See Riesman, “ Civil Liberties in a Period of Transition" in 3 Public Policy
33, 3 9 ( i 94 2')-
56. 283 U.S. 697 (19 3 1)-
57. 3 19 U.S. 624 (1943).
58. 323 U .S. 5 16 ( 19 4 5 ) .
59. Dennis v. United States, 3 4 1 U.S. 494 ( 19 5 1).
60. In Germany the famous Arts. 10 , 17 of the Prussian General Code (AJIge-
meines Landiccht) gave almost complete discretionary power to the police, and the
institution of “ protective custody" rested on this provision. Legally the situation is
similar in all countries. T he differences between the various countries are thus
caused by different attitudes of the courts and of the law-makers, and not by the
formulations.
6 1. Board of Education v. Barnette, 3 1 9 U .S. 624, 6 39-40 ( 1 9 4 3 ) .
62. See Rousseau, Contrat Social, Bk. 2, c. 6 (16 72).
63. Dennis v. United States, 341 U .S. 494, 555 ( 19 5 1).
64. Lucretius, On the Nature of Things, Bk. 1, 6 (Munroe transl. 1 9 1 9 ) .
65. Plato, Republic, c. 4 (Cornford transl. 1945).
66. Epicurus, The Extant Remains 97 (Bailey ed. 1926).
67. Id. at 107.
68. On the intellectual history of Epicureanism see Guyau, La Morale d’Epicure
et ses Rapports avec les Doctrines Contemporaines (3d ed. 1886).
69. See Bidney, The Psy chology and Ethics of Spinoza 372 (1940).
70. See Spinoza, Ethics, Bk. 5, Prop. 20 (16 77).
7 1 . See Freud, Civilization and Its Discontents (Riviere transl. 1 9 4 9 ) .
72. See Freud, Group Psychology and the Analysis of the Ego (Strachey transl.
i 949 ).
73. See Kierkegaard, The Concept of Dread 3 7 -3 8 (Lowrie transl. 1946); Freud,
Hemmung, Sympton, Angst (1926).
74. See Vico, The N ew Science (Bergin and Fisch transl. 1948).
75. Id., Bk. 1, N o. 13 2 - 4 3 , at 56—57.
76. See Neumann, supra note 5, at xxxv-xxxix.
77. Although, of course, St. Augustine had a similar notion.
78. For the most recent philosophical discussion of the Marxist conception see
W etter, Der Dialektische Materialismus 403-0 8 (19 52 ). T he author is an Austrian
Catholic. T he book has the Imprimatur.
79. Neumann, supra note 5, at xxxi-xxxii.
80. On this see my Behemoth: The Structure and Practice of National Social
ism 1 6 6 - 7 1 (2d ed. 1944).
8 1. W hether state sovereignty in domestic and international politics fulfills or
can fulfill today the same function is of no concern in this study.
82. Especially in Marx, “ Oekonomisch-Philosophische Manuskripte” (1844) and
D ie heilige Fam ilie" in 3 Marx-Engels Gesamtausgabe, Erste Abteilung (1932).
83. See Aristotle, Oeconomica * 13 4 3 * (Foster transl. 1 9 2 0 ) ; Aristotle, Politics
* 12 5 3 * (Barker transl. 1946) and passim.
84. For a good survey see Jarrett, Social Theories of the Middle Ages, 12 0 0 -
1500 , 12 2 -4 9 (1926).
85. T he very good survey, Schlatter, Private Property: The History of an Idea
(19 5 1), unfortunately fails in this. An interesting theory, little known and ap
preciated in the Anglo-American world, is that by the late Austrian President Karl
Renner, first published in 1 9 1 1 and translated as The Institutes of Private Law and
Their Social Functions (Kahn-Freund transl. 1 9 4 9 ) .
86. This was also C hief Justice Stone’s position. See United States v. Carolene
Products Co., 304 U .S. 144, 15 2 n.4 (19 38 ); see also Schneider v. State, 308 U .S.
14 7 , 16 1 (1939). Against this see particularly Justice Frankfurter in Board of E du
cation v. Barnette, 3 19 U .S. 624, 646 (19 4 3) (dissenting opinion).
87. It is impossible to define within the system of democracy specific institutions
which are potentially superior to other institutions, notwithstanding the old tradi
tion that within the democratic system certain institutional arrangements make for
the better protection of freedom: the doctrines of mixed government, of separation
of powers, and of federalism.
As to mixed government, Aristotle as well as Polybius, both advocates of the
doctrine, never understood by it a mere constitutional arrangement, that is, the
mixing of monarchic, aristocratic and democratic elements. They correlated the
constitutional distribution of power with the distribution of social power. Both
had specific social goals in mind.
Montesquieu’s doctrine of separate powers is equally correlated to the distribu
tion of social power. Moreover if we look into political reality we cannot discern a
coherent pattern. T he English system of parliamentary democracy, which know'S no
doctrine of separate powers (except for the uncontested and uncontestable doctrine
of judicial separateness and independence) maximizes political freedom; the conti
nental parliamentary democracies have failed in this task; while the United States,
with her presidential democracy, has maximized freedom— at least in the past. As
Bentham recognized in his Montesquieu critique, the division of state functions
into legislative, executive, and judicial and their allocation to three separate consti
tutional organs can protect freedom only if different social groups control the three
agencies, the division losing its protective value if the three agencies are controlled
by the same social group. See Neumann, supra note 5.
There exists as little correlation between political freedom and federalism. M on
tesquieu, probably following Plato’s conception that the size of the Polis is deter
mined by the reach of the Herald’s voice, believed that democracies could function
only in small territories. See Montesquieu, Considerations on the Causes of the
Grandeur and Decadence of the Romans (Baker transl. 1882) and Neumann, supra
note 5, at xliv. But since they may be threatened by external danger, confederation
can give them external strength without jeopardizing the internal strength derived
from their smallness. Montesquieu, The Spirit of the Laws, Bk. 9, $ 2 (1748 ).
Jefferson followed this reasoning, adding to it his view that an agrarian society is the
most stable substratum of democracy. See Jefferson, Commonplace Book (Chinard
ed. 1926); but see Griswold, Farming and Democracy (1948). None of these
propositions holds up to a critical analysis. There is no discernible relation between
the size of a territory and political liberty, and none between federalism and
democracy. England and France are centralistic democracies; the United States a
federalist democracy; Imperial Germany and many Latin-American republics have
or have had a federalism which served to strengthen authoritarian trends.
Such theories are expressive of what I call constitutional fetishism, the attribu
tion of political functions to isolated constitutional arrangements which have mean
ing only in a total cultural, and particularly social, setting. In short, the socio
cultural bases of a system of political freedom are far more important than the
specific constitutional manifestations. T his is today quite important because the
various occupation powers in the Far East and Europe have tended to impose their
specific political institutions upon the occupied countries because they attribute
to bare constitutional arrangements political effects which they could not possibly
exert.
(zoo) The Concept of Political Freedom
T he value of political democracy as a system preserving the rule of law, taking
account of the increase of knowledge, and rationally changing society to keep up
with knowledge, is not to be challenged; but within the system no specific institu
tions are, per se, more effective than others.
88. Aristotle, Politics * i 2 8 i b (Barker transl. 1946).
89. I take it that the freedom of the PoJis is, simultaneously, that of her citizens.
See on this Foster, The Political Philosophies of Plato and Hegel (19 35).
90. See M ax Radin’s delightful study, Epicurus M y Master (1949).
9 1. T he extent to which the volitional element is based on the corresponding
philosophical trends (culminating in Fichte’s philosophy) need not be discussed
here.
92. See Carr, Michael Bakunin (19 37), particularly at 3 1 - 3 2 .
93. This brief discussion does not intend to analyze the legality of the measures
but merely to hint at their political relevance.
94. See Executive Order 9835, March 2 1, 194 7, 12 F e<f. ^ eg- *935 (1 947 )*
95. Bailey v. Richardson, 18 2 F.2d 46, 66 (D .C . Cir. 1950) (Edgerton, J., dis
senting).
96. American Communications Ass’n v. Douds, 339 U .S. 382 (1950).
97. See 6 1 S t a t . 146 (1947), 29 U .S.C . $ 159(h) (Supp. 1952).
98. 336 U .S. 7 7 (19 4 9 ).
99. See also M aclver, The Web of Government (1947).
100. On the dangers in Germany between 1 9 1 9 - 1 9 3 3 see my Behemoth: Tha
Structure and Practice of National Socialism 4 0 0 -13 (1949).
1 0 1 . Plato, “ Protagoras” in Dialogues *322 (Jowett transl. 18 7 1).
10 2. See Schmitt, D er BegiiS des Politischen (2d ed. 19 32).
10 3 . See Jefferson, Commonplace Book 259 (Chinard ed. 1926).
10 4 . 2 Dew’ey, Character and Events 8 19 (1929).
[ c h a p t e r 7]
<[ <[
IN T E LLE C T U A L AN D P O LIT IC A L
FREEDOM *
I t w o u l d a p p e a r at first glance as if it were impossible to establish a

relation between scientific inquiry (Forschung) and man's freedom.
That is due, it appears, to the concept of freedom as well as to the
concept of scientific inquiry. For today freedom is defined—as it has
been for decades—as essentially negative-juristic, that is, as absence of
coercion. It is held, then, that the less political coercion man finds him
self subjected to, the freer he is, and “ coercion" is defined in such a
way that the activity of the state alone appears as coercion. The less the
state intervenes the greater the freedom, and vice versa: that, then, is
the inference that is drawn. Political freedom is exhausted in juristic
freedom, and the classical fundamental rights and civil rights alone
represent freedom. Every interference with them is an exception, an
evil that must be justified, and fundamentally the ideal is that of a
society without a state, for the state is the enemy of freedom.
This, I believe, is a prevalent conception of political freedom.
Now, I am in agreement with it, although I should like to intro
duce three qualifications.
First, I cannot agree that the state is always the enemy of freedom.
Fundamentally only a few believe it, although many say it. For it is
conceivable—and, thank God, not so rare—that the state defends free
dom, externally and internally. That is my first correction of the
liberal formula.
*Speech delivered at Bonn in July, 19 54 at the celebration of the Bicentennial of
Columbia University. T he version printed here is slightly abridged. Translated from
the German by Peter Gay, Columbia University.
(201)
(202) Intellectual and Political Freedom
Indeed, this correction has to be made also because it is incorrect to
claim that only the state could threaten freedom. W hy not also pri
vate interests and forces, why not monopolistic concentrations in
economic, social, cultural, and religious areas? After all, we know from
history how frequently and how brutally private groups have tried to
force their value systems upon a people. How, then, do minorities find
protection? Is it not the proper task of the state—as the representative
of universal interests—to restore the balance which is endangered by
the egoistic interests of private groups?
Despite these two reservations the formula, freedom equals absence
of coercion, is still correct. It is necessary, but not sufficient. It is neces
sary, because from this formula there follows fundamentally the whole
rational legal system of the civilized world.
For when freedom is absence of coercion there exists—to remain
with the language of the jurists—a presumption in favor of freedom and
against state coercion. The state must then justify its interference with
freedom in each case. It can justify it only by reference to the law and
before an independent tribunal.
I do not want to discuss here what all this means in detail.1 It is suf
ficient for our purposes to say that this negative-juristic freedom is an
indispensable element in our freedom. It distinguishes the civilized
state from the total state. It is the element of the concept of freedom
that we can never give up. But the constitutionalist (rechtsstaatliche)
element, indispensable as it is, is not sufficient.
It fails to answer the question—and this is the third correction—
W hat do we want to use this freedom for? W hat is supposed to be the
substance of our freedom? I base my argument upon the conception of
freedom in idealist philosophy. It is that of the self-determination of
man, who must have the possibility of unfolding his potentialities.
But how can man determine himself, how can he unfold his possi
bilities, when he does not know himself?
And what does it mean to know oneself? Three things seem to me
involved:
knowledge of external nature;
knowledge of human nature;
knowledge of the historical process.
Permit me first of all to deal with this threefold problem briefly
Intellectual and Political Freedom (203)
without establishing the connection with the juristic conception of
freedom. That I intend to do only at the conclusion.
But I want to emphasize from the outset that I assign equal signifi
cance for the determination of the conception of freedom to all three
questions: How is external nature constituted? How does the historical
process go on? W hat are the motives of human action? The natural
scientist, the humanist and social scientist, the psychologist thus all
have the same rank and the same significance.
To be sure, the connection between science and freedom appears to
have been lost today. The question is no longer asked. Today one is
far more concerned with demonstrating the utility of scientific re
search (Forschung), and this is very easy for the natural scientists and
very hard for the humanists, while the utility of the social scientists—
long since recognized in the United States—is increasingly being recog
nized in Germany. But this pragmatic valuation of scientific research
is of no interest to me here; it is perhaps even a little dangerous. For it
makes it difficult, indeed almost impossible, to understand why scien
tific research is a decisive element in the political freedom of man.
This is important for a second reason as well. If I understand con
temporary intellectual tendencies correctly, one is far more concerned
with determining the limits of scientific knowledge than with its con
tribution to the determination of the freedom of man. Insofar as it is
a matter of combating scientism, that is, the conception that scientific
inquiry alone can solve the problems of man, I am in full agreement
with it. But frequently the criticism of scientism is connected with a
new and rather dangerous obscurantism, which, consciously or un
consciously, plays into the hands of the political limitations of scien
tific inquiry.
(1) But this—the struggle of scientific inquiry against obscurantism
—is precisely the element which the cognitive concept of freedom2
(as I call the second element in the conception of freedom) introduces
into world history, namely, in the Roman philosophy of nature and
the philosophy of Epicurus. In the beginning the connection between
freedom and natural science was understood much better than is the
case today. I am of course not concerned with evaluating the scientific
accomplishments of the Ionians and of Epicurus—of these I under
stand nothing—but with seeing the connection between political free
dom and scientific inquiry. Epicurus—as well as his great pupil Lu
cretius—formulated the problem with great clarity. Over against the
notion that the phenomena of external nature are to be ascribed to the
arbitrary intervention of the gods, they championed the thesis that the
phenomena of nature are determined by necessity, and that it is the
task of man to understand and recognize necessity. Thus the great
problem of the relation of necessity to freedom was put and answered
by Epicurus in such a way that the understanding of necessity opened
the possibility of freedom. For the man who recognized that thunder
and lightning, the tides, the behavior of all external nature, proceed
not according to the caprice of the gods, but according to necessity,
could thus liberate himself from the fear of the gods and live fearlessly.
This great tradition of the concept of freedom, which Spinoza,
Hegel, Marx and others reformulated again and again, is still alive to
day; it is the inspiration of the great natural scientists who, in the
struggle with external nature, do not only want to subject nature to
man as an object of exploitation, but who also see in this striving for
the understanding of necessity a contribution to the emancipation of
man. Thus natural science—although it may be made to serve purposes
that contradict the freedom of man—is an indispensable element in the
construction of the concept of freedom. Natural science—as Dr. James
Conant said in the lectures which he gave at Columbia University in
1952—is thus neither magic nor mathematics. It is activity, an activity
which helps to determine the conceptual world of the common man in
the process of dissemination downwards, and thus—surely often in
garbled form—also shapes his conceptions of human freedom and
dignity.
The natural sciences are thus, even when their results are misused
concretely for purposes hostile to freedom, an indispensable element in
the determination of human freedom.
In Part III of his history of the theory of colors (Geschichte der
Farbenlehre) Goethe judged the work of Copernicus as follows:
“ Among all discoveries nothing may have had a greater impact on the
human spirit than the teachings of Copernicus.. . . How much did not
this insight reveal as illusion: a second paradise, a world of innocence,
poetry and piety, the tcstimonvr of the senses, the conviction of a po
etic-religious faith. No wonder that one did not want to let all this go,
that one opposed such a theory with all means, a theory which entitled
Intellectual and Political Freedom (20$)
and challenged him who accepted it to a hitherto unknown, indeed
unimagined, freedom of thought and greatness of sentiments.”
(2) The second stratum in what we have called the intellectual or
cognitive element of freedom is that which is concerned with the moti
vation of our acts. When Spinoza said that he wished to “ treat human
actions and desires as if it were a matter of lines, planes, and solids” he
is characterized, justly, as the founder of scientific psychology. He
formulated his aim unambiguously: the rule of reason can be secured
only through an understanding of the origins of the affects, the pas
sions and desires which limit rational behavior or make it impossible.
Indeed, in the Ethics the power of the intellect is equated with human
freedom, and his proposition that freedom is the insight into necessity,
only formulates in pregnant form the idea of Epicurus, a thinker whose
fundamental political attitude he shared. I shall return to this point at
the end.
Freud also belongs to this tradition. Again it is a matter of under
standing human action in order to enable man to act freely, i.e., ra
tionally.
Now it is certain that, just as with the transformation of the knowl
edge of natural science into technology, so also with the exploitation of
psychology in practice: the meaning of the results of research can be
converted into its opposite.
From the inquiries of natural science there emerges also the tech
nology of destruction; from modern psychology, that which is so beau
tifully called “ management of men” (Menschenfiihrung), i.e., the
manipulation of men for purposes which are incompatible with their
freedom.
But technology of destruction and propaganda—children of science
—must not mislead us into becoming obscurantists, into speaking of a
“ daemonics of technology” (Damonie der Technik), into longing
for the good old, as it were the pre-scientific, days, as if these good old
days had not also known their technology of destruction and their
seduction of souls.
(3) For the utilization of scientific and psychological knowledge—
for good as for evil—depends in part on the historical situation. And
so we come to the third stratum of the cognitive element of freedom:
the understanding of the historical process. The work of Bodin, of
James Harrington, Montesquieu and Vico, Hegel and Marx helps us
to approach this problem on which generations of Geisteswissen-
schaftler and social scientists have worked. Insight into necessity of
the historical process helps us to become free. For in different histori
cal situations the possibilities of human self-determination are differ
ent.
II
(1) I have here briefly sketched my thesis that the necessity for
scientific inquiry does not follow from its utility to state and society,
but from the fact that scientific inquiry helps to constitute human
freedom. I consider the attempt—as it is regularly made—to show what
great profit state and society derive from scientific inquiry as rather two-
edged. For if one wants to prove that, for example, the study of litera
ture or of Greek philosophy are useful to state and society, then one
would indeed have to make the strangest constructions to be convinc
ing—and one would hardly succeed. And if one tries to do this for in
quiry in the natural or social sciences, then one risks that the state
will prescribe what it considers to be useful.
No: scientific inquiry is legitimate because it enables man to under
stand external nature, the nature of man, and the historical process,
and is thus a decisive signpost in the determination of the freedom of
man; only the conscience of the scholar, and no other tribunal can
decide on this point.
(2) Thus we are confronted with the second question: what are the
political conditions which are favorable to scientific inquiry?
Today—and justly—one will say (or at least scholars and academic
teachers will say) that only that political system promotes scientific
inquiry which respects and enforces the civil rights of the individual
(the juristic conception of freedom) in full measure.
But why is that so, and was it always so?
It cannot be maintained that it was always so. Neither the Greek
world of the polis, nor the Middle Ages, nor absolutism knew an indi
vidualistic conception of freedom, which has become a part of our
political reality only through and since the Puritan Revolution in
17th-century England. And does one really want to maintain that great
scientific achievements were unknown to the Greeks, to the Middle
Intellectual and Political Freedom (2 °7)
Ages, to absolutism? And what holds true for science is even truer for
the arts.
Thus one cannot establish the general thesis—as it is so often done—
that science and art flourish only under conditions of freedom. That
is true today, but it was by no means always so. Unfortunately, I know
no study that gives a historical and systematic account of the political-
social conditions of scientific inquiry.
Permit me therefore to operate with unproved hypotheses. It seems
to me that a homogeneous society is at least as fertile a soil for scientific
and artistic production, as the competition and the antagonistic society
of the modern period. Greek philosophy and art, medieval theology,
philosophy and the beginnings of scientific thinking, as well as artistic
production are manifestations of closed and relatively homogeneous
societies in which there was no freedom in our sense. But it is im
portant to call attention to the fact that this homogeneity must be
genuine, i.e., that homogeneity must not be constituted by coercion
and terror. Where homogeneity rests on terror, as in Sparta, in National
Socialism (the theory of people's community [Volksgemeinschaft]), or
in the Soviet Union (the theory of the Stalinist socialist state), there
is neither scientific nor artistic progress. Then scientific progress de
pends alone on the utility which the state attaches to scientific inquiry.
Plutarch had already seen this, when he says in the Lycurgus: “ They
learned to read and write exclusively for practical purposes. All other
forms of education were banned from the country, including books and
treatises." In modern totalitarian states, which rest upon technological
progress and the management of men, scientific progress is determined
completely by political utility, with results which we feel and see clearly
today.
A halfway genuine homogeneous society (whether this homogeneity
is religious, cultural, or political), i.e., a closed society which does not
rest upon terror, is however (or once was) a very fertile soil for great
scientific and artistic achievements.
That holds true for the absolutist state as well; whether the Italian
tyrannies where the competition of tyrants and the glorification of
genius made possible the production of the extraordinary, or the abso
lutism of the 17th and 18th centuries, where the absolute monarch
was either interested in scientific investigation—he needed neither
modern technology nor management of men for the maintenance of
his rule—or felt that it heightened his personal glory and alone gave
him the prestige which the baroque demanded of the monarch.
(3) But this begins to change as early as the 17th century. To the
degree that the world becomes one of competition and modern in
dustry, to the degree that the religious homogeneity is lost, other
political conditions must exist for fertile scientific inquiry, namely,
competition as a universal principle. The development of this idea may
be attached to three great names which express three stages of this
development: Bodin, Locke, and John Stuart Mill.
(a) Bodin’s problem was that of the legitimation of a secular state
power in a society torn by religious hatred and religious wars which
threatened to destroy the state and to raise political anarchy to a
permanent condition. Precisely for this reason the relation of state and
religion became the center of political theory. In his Heptaplomeres
he made an attempt to determine the truth content of various religions
by means of a comparative analysis of religions. The results of this
discussion (which anticipates Lessings Nathan der Weise) was that
none of the religions was completely true or completely untrue. The
truth content common to all religions is determined as being this:
there is a God; he is the God of creation; there is a life after death;
and man on this earth is obligated to observe certain ethical principles.
Christianity’s doctrine of salvation is rejected as just as irrelevant as
the whole ritual and the doctrine of the Trinity.
From this it follows for Bodin that the state must not identify itself
with any religion and must tolerate them all. The principle of religious
toleration is thus derived from raison d’etat. The existence of the state,
which alone guarantees freedom and security, thus makes religious
freedom necessary. Thus religious freedom is not construed as the right
of the individual to religious freedom, but as a principle of raison
d’etat.
(b) The second step was taken by John Locke who—starting from
his theory of natural law, from the right of all—construed freedom of
religion for all including idolators but excepting atheists.
But with Bodin as well as with Locke, religious freedom of non-
Christians was construed as tolerance, i.e., the principle is faced with
the exception which one must tolerate from common sense.
(c) John Stuart Mill breaks with this conception. Near the beginning
of Chapter II of his essay On Liberty, we find the following classic
formulation: “ If all mankind minus one were of one opinion, and only
one person were of the contrary opinion, mankind would be no more
justified in silencing that one person, than he, if he had the power,
would be justified in silencing mankind. Were an opinion a personal
possession of no value except to the owner; if to be obstructed in the
enjoyment of it were simply a private injury, it would make some dif
ference whether the injury was inflicted only on a few persons or on
many. But the peculiar evil of silencing the expression of an opinion is,
that it is robbing the human race; posterity as well as the existing gener
ation; those who dissent from the opinion, still more than those who
hold it. If the opinion is right, they are deprived of the opportunity of
exchanging error for truth: if wrong, they lose, what is almost as great a
benefit, the clearer perception and livelier impression of truth, pro
duced by its collision with error."
For, he continues, “ W e can never be sure that the opinion we are
endeavouring to stifle is a false opinion; and if we were sure, stifling
it would be an evil still."
What Mill here says so impressively is fundamentally the thesis that
the truth can arise only from the competition of opinions, that there
is no such thing as a prevailing opinion and divergent opinions, that it
can thus never be a matter of tolerating other views, but that the truth
is discoverable only through the clash of different opinions.
This was, first of all, the consequence of M ill’s own experience:
educated as a prodigy in the theory' of utilitarianism, he came upon
German Idealist philosophy (conveyed by the poems of Wordsworth
and the metaphysical speculations of Coleridge) after the death of his
father, James Mill. His unusual candor and his skepticism concerning
his own ideas remind us of Descartes’ critic Gassendi, and his theory
of truth as competition of opinions had already been similarly formu
lated by Milton; however, Milton had excluded Catholics.
But M ill’s On Liberty contains a second problem, a problem which
is even more important today than it was at the time of Mill.
Mill saw the threat to freedom as stemming less from the state than
from society. M ill—going beyond his father—recognized that the sys
tem of political representation of parliamentary democracy could not
function when society itself was not based on similar principles. It was
his fear that an intolerant society might destroy the libertarian element
of political representation.
I am aware that Mill's concept of truth is open to argument. But I
am not here concerned with the philosophical correctness of Mill's
theory. W hat matters is this: that in a society which is not homo
geneous, in which religions, classes, parties, groups confront each other,
there can be no principle of adjustment other than that of competition:
that in this case every truth is only relative; that only the contest of
opinions—each of equal significance—is the institution which enables
men to live together.
Now, on the basis of my earlier argument one might be of the
opinion that not only liberal democracy but also—and perhaps even
better—constitutional monarchy, or even absolute monarchy could
guarantee freedom of inquiry. I have already pointed out that this was
true once, but I want to emphasize categorically that it can no longer
be true, without here being able to offer proof which I have offered
elsewhere.3 The reason seems to me to be that today anti-democratic
tendencies no longer take the form of absolutism, but must always take
the form of totalitarian dictatorship. That is to say: if one is anti-demo
cratic today one strengthens, consciously or unconsciously, Fascism,
even when one does not have this aim oneself. It is this reason, too,
that designates liberal democracy as the ideal political institution for
free scientific inquiry.
Ill
So it seems to me that liberal (or constitutional) democracy is indeed
the most appropriate political form which is today most conducive to
scientific inquiry as well as to political freedom.
But this democracy, and the position of scientific inquiry within it,
are exposed to certain dangers, dangers which are very familiar to
everyone who works in a sensitive area of science.
An analysis of all the tendencies that threaten democracy would go
too far. There is danger, too, that what has often been said will only
be repeated. W hat I say here is on the one hand too aphoristic and on
the other hand far too little differentiated. But the decisive tendencies
must be at least indicated, so that my conclusions appear logically
founded.
(1) To be sure, we know that since the French Revolution anti
liberal and anti-democratic theories have been propagated which cham

pion the thesis that from democracy there must necessarily emerge the
rule of the mob, a bloodthirsty mob which, in order to be able to exer
cise its rule, places a tyrant at its head. The total state then appears as
the necessary fulfillment of democracy. De Maistre, Bonald, Donoso
Cortes, Spengler, Ortega y Gasset repeat this idea in one form or
another.
Most of them appeal to a supposedly Augustinian anthropology and
claim that man, corrupt in his nature, must necessarily create a totally
corrupt political regime of mob rule when, as with democracy, he must
stand on his own feet.
Now I do not wish to discuss this supposedly Augustinian anthro
pology. Elsewhere—in my essay “Anxiety and Politics” 4—I have sought
to show the conditions under which a mass can in fact become a mob.
H ie possibility of mob rule exists. As a rule, those who advocate this
so-called Augustinian anthropology are after all the same who also
strive to convert their theory into reality through propaganda and
politics; while on the contrary it seems to be the duty precisely of the
intellectual, to oppose the tendencies to mob rule.
This tendency—but it is only a tendency, no more—is indeed in
herent in democracy. It means that a purely democratic system has
conformist tendencies, that is to say, that the fact of mass rule presses
upon the whole intellectual and artistic life of the nation, in order to
create a conformist monolithic culture.
These tendencies are not dangerous in themselves. There is anti-
intellectualism in every mass movement. The suspicion that the intel
lectual will refuse to play the game is always present. Rightly or
wrongly the mass sees the intellectual as Socrates had asked him to be:
as a stranger, a metic, who in the name of truth must not and cannot
fully identify himself with any political system.
In his analysis of American democracy Tocqueville pointed to these
tendencies; and my colleague Richard Hofstadter has described such
a typical case of a regressive mass movement in his history of the
Populist movement in the United States.
Such tendencies become dangerous only when they appear organized
on the political scene, led by a demagogue, generously equipped with
financial means. . . .
There is no doubt that there are tendencies to mob rule in democ
racy, that these tendencies can become dangerous in certain historical
situations. But there is no necessity of the conversion of democracy
into a cacsaristic dictatorship, into a total state, if those to whom the
maintenance of liberal political institutions should matter most—the
scholars and teachers, intellectuals and artists—resolutely conduct the
fight for liberal political institutions.
(2) The second tendency which can become dangerous to traditional
liberal democracy—and thus to the scientific scholar—is the structural
transformation of society, i.e., the transformation of an open, plural
istically organized society into a corporate, closed society. That means
concretely (and I certainly do not claim to be able to understand or to
analyze these tendencies in their complete extent) that the individual
is no longer estimated according to what he is but according to what
he belongs to.
Not performance but status seems to become decisive. Society seems
to be composed of social corporations, each with a tendency toward
monopoly, preferably protected in its monopoly position by public
law in order to make access to it more difficult.
I cannot here discuss that and why it should be so, or why it should
have become so, above all, in Europe. But certain consequences for
scientific inquiry must at least be indicated.
The structural transformations of society coincide with the change
in the operation of scientific inquiry. Humanists have been touched
less by it than have the natural and social scientists. Progressive special
ization, growing division of labor and the steadily increasing costs
of research create new problems.
The individual Maecenas has disappeared. The collective anony
mous Maecenas has replaced him. H ie individual Maecenas had his
caprices and prejudices, but one knew who he was. To be sure, state
machinery—the new anonymous Maecenas—has no caprices, but it has
immense power. In a speech which the West German Minister of the
Interior, Dr. Schroder, delivered at the dedication of the new buildings
of the Berlin Free University, he posed this problem with remarkable
and rewarding candor and promised that the state would never abuse
this power.
But even if we assume that states will act in the manner promised
by the Minister, that is, even if the state abstains from interference
with the goal of inquiry and acknowledges the autonomous decision
Intellectual and Political Freedom (2 1 3)
of the scholar concerning his aim and his methods, even then there
remain dangers. For specialized research, with its division of labor,
above all in the natural and social sciences, can be carried out only
through and within a research organization, within an apparatus which
—like all social apparatuses—has the tendency toward bureaucracy.
The greater and the more difficult the tasks of research, the stronger
this tendency.
But with this the scholar easily becomes a functionary who must fit
himself into the ranks, must work in a hierarchy, and—above all the
younger man—becomes so specialized that he completely loses his
general view of the research problem. I do not polemicize here, above
all not against specialization in research which I consider necessary
and fertile, but only point to the dangers of specialization within a
bureaucratically organized research apparatus.
W e can meet these dangers only through our own efforts: namely,
through the struggle against the bureaucratic tendencies within re
search activity and the creation of co-operative communities of re
search, in which there must be no distinction between the oldest
scholar and the youngest colleague in the responsibility for research.
The assistant must disappear to make way for the colleague.
Only when we older men impose upon ourselves the same measure
of restraint that we demand of our anonymous Maecenas, can we pre
vent the extraordinarily strong bureaucratic tendencies from making
us into functionaries of anonymous apparatuses, and thus prevent the
process which seems to be taking place in society as a whole—and
which I have indicated briefly—from spreading into the society of
scientific scholars.
Scientific inquiry stands and falls with the preservation of individual
or co-operative responsibility of the scholar for the result of his re
search.
IV
W e make great demands upon the political system. W e demand

academic freedom and freedom of inquiry and demand the meahs
which make it possible for us to conduct research. W e demand this
not from arrogance or caste spirit, but because we are permeated by
the conviction that scientific inquiry is an indispensable element of
political freedom and that this cognitive element of freedom can
flourish only on the soil of juristic freedom.
But has the political system no demands to make upon us?
It seems to me that the state can and must make two demands of us.
The first concerns the limit of research and teaching on the one
hand, and propaganda on the other. Of course, we are all of the opinion
that propaganda belongs neither in the lecture hall nor in the labora
tory. But can one always distinguish between propaganda and non
propaganda? Perhaps there is a definition that is not purely tautological.
I know of none that satisfies me and yet I know—as you all do—that
there is a distinction and that it is a relevant distinction.
But if—in the concrete case—propaganda is easily recognizable, who
shall be trusted to eliminate it? The state? The administration?
M y answer is: No—although, in view of German experience be
tween 19 18 and 1933, this reply comes very hard to me. And, indeed,
it was this experience that led to the inclusion of the article on aca
demic freedom in the new German constitution.
The responsibility of keeping propaganda out of lecture halls and
researches thus should lie with the scholars themselves, who must
exercise this responsibility collectively or through criticism, without
being deterred from it by a false caste spirit.
The second demand which the state of liberal democracy must
make upon us is equally difficult: that of political responsibility. Until
now I have dealt with only two elements of the political concept of
freedom: juristic and cognitive. But right limits might; the knowledge
of external nature, of the nature of man, and of history opens to us the
possibility of action, but only the political act itself, our activity can
bring and secure freedom. The third element of political freedom, the
element of the will, is just as decisive as the other two.
I know that political apathy is great, and that we rationalize our in
dignation with politics, the aversion to day-to-day politics, with an
Epicurean philosophy. W e think of the correspondence between At-
ticus, the Epicurean, and Cicero, the Stoic, and believe that when we
follow Atticus’ advice to keep out of politics and devote ourselves to
our perfection, we are at all events secure and can render greater serv
ices to humanity than if we joined a party and possibly—like C ic e ro -
bet on the wrong horse.
Intellectual and Political Freedom ( 215)
Today, from a moral point of view alone, I consider the Epicurean
attitude to politics irresponsible. When the state gives us security and
still leaves us freedom—should we then be uninterested in politics?
But pragmatically, too, the Epicurean attitude is no longer defens
ible. For who among us can remain outside politics and be spared by it?
Atticus could, because he was very rich and famous. But we could do
so only if we were so insignificant that we would remain completely
uninteresting to the politicians, or so significant, and with such a repu
tation, that the politicians would not dare to touch us. But the large
majority of us is neither insignificant nor a genius, and thus we are
always caught. Experience with totalitarian states has shown that
neither the insignificant man nor the genius can escape his fate. Society
is too integrated, the means of communication are too refined, the
methods of supervision are too highly developed.
Thus, morally and pragmatically we have the obligation of taking a
position on great political questions—be it for democracy, be it for
another system, be it for this or that conception of foreign policy, be it
for or against a liberal economy. For us, as scholars, an approximation
to the truth can result only from scientific discussion.
One may consider Max Weber's conception of the objectivity of
social science as mistaken—as I do—but this principle which he enunci
ated in “ Science as a Profession" I consider to be the only possible one
in practice: that all political questions ought to be discussed openly
and without rancor, that no scholar and teacher has the obligation of
accepting a political system, but that each of them has the obligation,
knowing his own prejudices, of discussing openly and rationally every
political action and conception.
These seem to me to be the connections between intellectual and
political freedom. Although it is only one element of the political free
dom of man, free scientific inquiry in a free society is indispensable for
the self-determination of man.
Notes
1. See “ T he Change in the Function of Law in M odem Society," reprinted in
this volume.
2. See “ T he Concept of Political Freedom ," reprinted in this volume.
3. See “ Notes on the Theory of Dictatorship," printed in this volume.
4. Reprinted in this volume.
[ CH A P TE R 8]
<; <!
O N THE THEORY OF THE

FEDERAL STATE *
it will be necessary to define, as briefly as possible, the meaning of

the term “federalism” before we can answer the two fundamental
questions:
1. Is there a value which inheres in federalism as such?
2. Are there goals that can be attained only through federalism?
I
Have the terms “ federalism,” “ federal government,” or “ federal
state” definable meanings? A superficial study of the various kinds of
federal government—those of the United States, Canada, Australia,
Switzerland, Imperial Germany, the Austro-Hungarian Dual Mon
archy, Weimar and Bonn Germany, the Central African Federation,
the Union of South Africa, and the U SSR, to mention the major
modem Federal states—fails to show any element common to all, ex
cept a juristic one. The common element is this: in each, the citizen of
the federal state is subject to two jurisdictions: that of the federal
government and that of the states.1 Usually connected with this is a
separation of the legislative, administrative, and judicial functions in
order to insure the orderly operation of government. The lawyer—and
the lawyer alone—is thus capable (and obligated) to make statements
concerning federalism that can claim general validity.
Not so the political and social scientist. He will accept a legal
definition of federalism, but he must go beyond it. The legal definition
of federalism, like all legal definitions, is a negative one. It tells us that
* By Franz Neumann assisted by George A. Kateb. Reprinted from Arthur Mac-
mahon, ed., Federalism Mature and Emergent (Doubleday, 19 55), pp. 44-57*
6)
On the Theory of the Federal State (217)
we cannot treat a mere treaty system or a confederation of states as a
federal system. But it can tell us nothing about the political and social
function of the federal system. If we wish to know this, we must ask
the two questions: whether federalism as such has a value; and whether
certain goals are attainable only through this governmental arrange
ment.
Posing the questions in such a manner creates extraordinary diffi
culties. How can one determine whether a certain value inheres in
federalism? The federal arrangement operates always within a specific
political, social, and cultural setting and the isolation of the federal
element from this setting is obviously extremely difficult, perhaps even
impossible. Even if we confine the analysis to democratic systems of
government, the political and constitutional factors that tend to
change the function of federalism are these:
1. presidential or parliamentary democracy
2. separation of powers (checks and balances)
3. the party system;
and the social and economic factors are these:
1. the extent of the pluralistic structure of society
2. the urban-rural ratio
3. the degree of concentration of economic power.
It seems obviously inadmissable to attribute to federalism values
which form, in reality, a syndrome consisting of a specific constitutional
arrangement within a specific socio-economic structure. W hat our
statements amount to, therefore, is that the value of federalism (as
against a unitary state on the one hand, and a looser form of co-opera
tion on the other) can be determined solely through an empirical
analysis of a given political system. The need for such an analysis will,
moreover, become clearer if we analyze the claims made for the federal,
as against the unitary, system.
II
The theoretical argument for federalism revolves around the poten
tial of political power for evil. Federalism is seen as one of the devices
to curb the evil use of power by dividing power among a number of
competing power units.
The underlying sentiment—the corruptive influence of power—is
(2i 8) On the Theory of the Federal State
often not clearly formulated and the consequences thus not clearly
seen.
1. In its most radical form, this sentiment appears in the various
anarchist schemes. It has been popular in the anarcho-syndicalist
theories and practices of the Latin-speaking countries and with the
IW W of the United States. W e may find in Proudhon the most pre
cise expression of that trend and a most radical advocacy of “ federal
ism.^” But one must, of course, not tear the federalist conception of
Proudhon from the context of his social and political philosophy. His
theory of federalism has nothing in common with that of the federal
state; it is rather the very negation of it.
Proudhon indicts capitalism because he finds in it a basic injustice,2
the exchange of non-equivalents. This injustice comes from two insti
tutions: private property, and the state. The property owner is able
to draw advantages from the exchange process by selling commodities
at prices that are above value, thus imposing a tax upon the social
product. It is this exchange relationship which creates the two social
classes: the new feudality of owners living on interests, rents, and
dividends, and the workers who own no capital except their labor. The
state—no matter what its form—is that agency which maintains the
exchange of non-equivalents, protects the new feudality, and prevents
the uprising of the majority against the minority. This is the sole role
of the state, which can never, under any circumstances and in any form,
change the system, reform it, or create social justice—even when the
state is a democracy. Justice can thus be obtained only against the
state, against political power, only through a contractual industrial
organization3 of small-scale units.
One may, if one so desires, call this a “ federalist” theory, but it is
obvious that it cannot help us in our problem of determining whether
the federal state, by lessening the corruptive effect of power and
thereby increasing political freedom, becomes, on that account, pref
erable to the unitary state.
2. It is Lord Acton's statement on the corruptive effect of political
power which appears to have today the greatest influence. Three state
ments of his on political power are:
a. “ . . . power tends to expand indefinitely, and will transcend all barriers,

abroad and at home, until met by superior forces.”
b. “ History is not a web woven with innocent hands. Among all the causes
On the Theory of the Federal State (2 1 9)
which degrade and demoralize men, power is the most constant and the
most active.”
c. To Creighton: “ I cannot accept your canon that we are to judge Pope
and King unlike other men, with a favorable presumption that they did
not wrong. If there is any presumption it is the other way against holders
of power, increasing as the power increases. Historic responsibility has to
make up for the want of legal responsibility. Power tends to corrupt and
absolute power corrupts absolutely. Great men are almost always bad men,
even when they exercise influence and not authority: still more when you
superadd the tendency or the certainty of corruption by authority. There
is no worse heresy than that the office sanctifies the holder of it.” 4
These statements have two aspects. The first one is, indeed, un
objectionable and, of course, not very original. Thucydides said much
the same:6
Melians— “ You may be sure that we are as well aware as you of the
difficulty of contending against your power and fortune, unless the terms
be equal. But we trust that the gods may grant us fortune as good as yours,
since we are just men fighting against unjust, and that what we want in
power will be made up by the alliance of the Lacedaemonians, who are
bound, if only for very shame, to come to the aid of their kindred. Our
confidence, therefore, after all is not so utterly irrational.
Athenians—When you speak of the favour of the gods, we may as
fairly hope for that as yourselves; neither our pretensions nor our conduct
being in any way contrary to what men believe of the gods, or practice
among themselves. Of the gods we believe, and of men we know, that by a
necessary Jaw of their nature they rule wherever they can. And it is not as
if we were the first to make this law, or to act upon it when made: we
found it existing before us, and shall leave it to exist for ever after us; all
we do is to make use of it, knowing that you and everybody else, having
the same power as we have, would do the same as we do.” (emphasis sup
plied)
And Montesquieu6 said this even more clearly. According to him7
power could be checked only by power—a statement that few would
be willing to quarrel with. Not ideologies and beliefs, but only a
counter-power, can check power. In this he applies Cartesian princi
ples; and stands in the tradition of Spinoza, who saw no way of
limiting the state’s absoluteness (which was a logical consequence of
his assumptions and of his geometric method) except by a counter-
power.
The Montesquieu generalization is, of course, designed to give his
doctrine of the separation of powers an adequate theoretical base. But
(220) On the Theory of the Federal State
as little as the theory of separate powers follows from his sociological
observation, as little does that of the preferability of the federal state.
Bentham8 rejected the separation of powers not only as incompatible
with democracy, but also because it could not really maximize freedom
if the three organs of government were controlled by the same social
group. A quite similar argument can be raised against federalism as a
guarantee for liberty. Those who assert that the federal state through
the diffusion of constitutional powers actually diffuses political power
often overlook the fact that the real cause for the existence of liberty is
the pluralist structure of society and the multi-party (or two-party) sys
tem.9 Federalism is not identical with social pluralism; and neither the
two-party nor the multi-party system is the product of the federal state
or the condition for its functioning.
3. Whether the federal state does indeed increase freedom or in
Professor Macmahon’s terms “ lessens the risk of a monopoly of
political power by providing a number of independent points’'10 can
not be abstractly determined. W e have some evidence that the federal
state as such (that is, regardless of the form of government) has not
fulfilled this role. The German Imperial Constitution certainly created
a federal state, but there is little doubt that politically it had a dual
purpose: to be a dynastic alliance against the forces of liberalism and
democracy,11 and to secure the hegemony of Prussia.12 One may argue
that a unitary state may even have been worse than the federal solu
tion: that is quite possible. Although one may say, with reason, that
the archaic Prussian three-class franchise could not possibly have been
introduced as the system for a unitary German state. Thus a unitary
German state in all likelihood would have been more progressive than
the Bismarckian system.
The Austro-Hungarian Dual Monarchy, after the Ausgleich of 1867,
was an attempt to ensure the rule of the Germans and Magyars over
all other nationalities.13 The Dual Monarchy most certainly did not
maximize freedom except for the oligarchies in its two constituent
states.
Perhaps more striking are the respective roles of federalism and
centralism in the coming to power of National Socialism. Some believe,
indeed, that the centralization under the Weimar Republic is wholly
or at least partly responsible for the rise of National Socialism. But
there is no evidence for this statement, nor indeed for the opposite one.
On the Theory of the Federal State (2 2 1 )
It is certain that Bavaria, with the strongest states-rights tradition, gave
shelter to the National Socialist movement, and it is equally certain
that the federal character of the Weimar Republic did not, after
Hitler’s appointment, delay the process of synchronization (Gleich-
schaltung) of the various state governments. Nor is there any definable
relation between democratic conviction and federalist (or unitary)
sympathies. The National Socialists were both centralists and reaction
ary, as were the Nationalists. Democrats and Social Democrats were
antifederalists and committed to the preservation of political freedom.
The Catholic center was not wholeheartedly committed to any posi
tion, and the Communists were, in theory, for the unitary state but did
not hesitate, during the revolution of 1918, to advocate the secession
of Brunswick, which they believed to have in their pocket.
4. But perhaps what is meant by saying that federalism maximizes
freedom is that only in a democracy does the division of constitutional
power among various autonomous territorial units effect a maximum
of political liberty; in other words, that democracy and the federal
state go together, even that federalism is necessary for democracy.
Literally taken, this statement is most certainly untrue. The United
Kingdom is a proof against it. Weimar Germany cannot be cited either
for or against it. Bavaria—the most states-right conscious Land—was
certainly the most reactionary, Prussia the most democratic. Insofar as
the United States is concerned, it seems almost impossible to make any
statement because of the extreme difficulty of attributing to the federal
system—in isolation from other elements—any specific function. There
are, perhaps, some tests like the protection of civil liberties. For a
criminal, the federal system has obvious advantages in that it increases
his margin of safety from prosecution. The need for extradition may,
in isolated cases, permit a criminal to escape punishment. It is doubt
ful, however, that this can be taken as a compliment to federalism.
Of real importance would be a study designed to prove or disprove that
the federal nature of American government has strengthened civil
liberties. The criminal syndicalism legislation of the post World W ar I
period14 does not permit us to pass a final judgment. The “ red hysteria”
of that period was “ practically assured of passage (of this type of legisla
tion) with only slight examination.” 15 The bills were passed with
breath-taking swiftness and little debate, or with a great outburst of
oratory characterized more by passion, prejudice, and misinformation
than by a reasoned effort to get at the facts/’16 There seemed to be a
race among the various states for the most drastic legislation, and
vested interests, their influence enhanced by the makeup of the state
legislatures, pushed through the bills.17 Simultaneously, efforts to enact
a federal bill failed from 19 17 to 1920.18 On the other hand, however,
it is possible that without state laws, a federal bill may have been
enacted, and it is also true that in a few states19 no legislation was
enacted. On the whole, one may perhaps say that the federal system
may have speeded up inroads into the civil liberties rather than have
protected them.
The same, perhaps, may be said of the present situation.20 The
evidence is certainly too slight to be of great value in determining
whether the federal system is preferable to the unitary state as an
instrument to preserve or enhance civil liberties. Nor is it likely that
convincing evidence can be obtained, since other factors—the plurality
of the social structure, the functioning of a truly competitive party
system, the strength of a favorable tradition, the intellectual level of
the population, the attitude of the courts—do far more easily permit
the formation of a counter power against forces hostile to civil liberties
than does the federal structure of the government.
5. Lord Acton’s statements, however, are also concerned with a
second aspect: namely, the corruptive influence of power. This brilliant
formula that power tends to corrupt and absolute power corrupts
absolutely has attained the position of a classical remark; but, inevi
tably, it has also become a cliche, of which neither the meaning nor
the validity is ever questioned. The content of the statement is
certainly not very original. W hile Plato’s discussion of the same prob
lem22 shows a much deeper insight, Lord Acton’s has the undoubted
merits of brevity and of quotability.
Lord Acton asserts that the character of the man who has power is
corrupted by the exercise of power, or as the German adage has it,
politics corrupts the character. This is probably a valid generalization,
but what is its significance for politics in general and for our problem
in particular? A morally evil ruler does not necessarily make a bad
ruler—he may accumulate riches, indulge in all kinds of vices, and yet
his rule may be beneficial; while the paragon of virtue may lead his
country to destruction. But if we turn from monarchy or tyranny to
On the Theory of the Federal State (2 2 3)
representative government, the applicability of the formula to politics
is quite certainly small.
But we may well redefine the formula to mean that too much power
concentrated in any organ of government has evil consequences for the
people and that federalism, by dividing power among independent
territorial units, checks these evil potentialities.
Thus redefined, the statement is no longer defensible because the
opposite may equally be true. It is, indeed, also true: too little power
tends to corrupt and absolute lack of power corrupts absolutely; or,
as Edmund Burke put it, “ Nothing turns out to be so oppressive and
unjust as a feeble government.” One can accept Burke’s assertion as
absolute truth as little as one can Lord Acton’s. Both are partially true
generalizations, Burke’s being, perhaps, a more realistic description of
marginal situations than Lord Acton’s. If one shares Burke’s hatred of
revolution, one may keep in mind that modern revolutions such as the
French of 1789, the two Russian ones of 19 17, and the German of
1918, had their immediate cause in the lack of power of the central
governments, and not in the excessive use or abuse of power.
6. It thus seems impossible to attribute to federalism, as such, a
value; or to assert that the federal state—as contrasted to the unitary
state—enhances political and civil freedom by dividing power among
autonomous territorial subdivisions of the central government.
I ll
1. The argument for federalism may, however, have a quite different
meaning. It may, in reality, express the theory of “ grass roots” democ
racy, the view that small-scale units alone permit the practice of
democracy and that, consequently, the value of small units must be
preserved even in large states so that mass participation in politics will
remain a political practice. The most precise formulation of this
theory is found in Montesquieu who, through his analysis of the
collapse of the Roman Empire23 came to the conclusion that democ
racy, being incompatible with a large empire, can be effectively prac
ticed only by a small territorial entity.24 Rousseau accepted this view
and made it popular.
“ In any case, the moment a people allows itself to be represented, it is

no longer free: it no longer exists. All things considered, I do not see that
it is possible henceforth for the Sovereign to preserve among us the exer
cise of its rights, unless the city is very small/’25
But Montesquieu, Rousseau, and The Federalist26 clearly recognized
the dilemma of democracy. As Montesquieu put it, “ If a Republic is
small, it is destroyed by a foreign power; if it be large, it is ruined by
internal imperfection/’27 Rousseau virtually copied this notion from
Montesquieu by continuing the above quotation: “ But if it is very
small, it will be conquered? No. I will show later on how the external
strength of a great people may be combined with a convenient polity
and good order of a small state/’ Both writers (and The Federalist,
following Montesquieu) suggest federation as a device to attain both:
external security and internal democracy. It is well to realize that
Jefferson w’hile, failing to copy the chapters on the separation of
powers, carefully abstracted this view of Montesquieu.28
The Montesquieu-Rousseau theory raises a quite difficult problem:
the relation of territorial size to the political structure. This problem
has not been adequately discussed since the work of Ratzel.29 Rous
seau’s adaptation of Montesquieu’s statement raises a second difficulty,
namely, the identification of democracy with direct democracy. Rous
seau’s quotation appears in the chapter entitled “ Deputies or Repre
sentatives” and is concerned with the demonstration that democracy,
being a complete identity of rulers and ruled, cannot be representative
government. Yet our theory of democracy (although political scientists
quite frequently long for “ mass participation in politics” ) is a theory
of representative government, of a form of government which is charac
terized by the electoral process and by the political responsibility of
the representative organs to the electorate. The two doctrines have
nothing in common with each other, although the instrumentalities of
direct democracy, like initiative, referendum, plebiscite, and recall,
may or may not serve as correctives to representative government.30
If, therefore, one does not accept the Rousseauist model, nor agree
with Montesquieu’s analysis of the cause of the collapse of the Roman
Republic, then it is difficult to accept the consequence that a unitary
system covering a large territory cannot be a democratic system.
2. Indeed, neither Madison nor John Stuart Mill, to name two,
shared this view and yet both were quite deeply attached to the princi
ple of political liberty. Madison wrote:
On the Theory of the Federal State (2 2 S)
“ Was, then, the American Revolution effected, was the American Con
federacy formed, was the precious blood of thousands spilt, and the hard-
earned substance of millions lavished, not that the people of America
should enjoy peace, liberty, and safety, but that the government of the in
dividual States, that particular municipal establishments, might enjoy a
certain extent of power, and be arrayed with certain dignities and attributes
of power? . . . It is too early for politicians to presume on our forgetting
that the public good, the real welfare of the great body of the people, is the
supreme object to be pursued; and that no form of government whatever
has any other value than as it may be fitted for the attainment of this ob
ject. Were the plan of the convention adverse to the public happiness, my
voice would be, Reject the plan. Were the Union itself inconsistent with
the public happiness, it would be, Abolish the Union. In like manner, as
far as the sovereignty of the States cannot be reconciled to the happiness
of the people, the voice of every good citizen must be, Let the former be
sacrificed to the latter.” 31
The quotation exhibits a view quite at variance with the Montesquieu-
Rousseau theory. It is the power of the central government which
appears as the guarantor of political freedom against the states. And
John Stuart Mill, the great defender of diversity and individuality,
when discussing Italy's future constitutional structure, reasoned in
quite the same terms:
“ The question may present itself (as in Italy at its present uprising)
whether a country, which is determined to be united, should form a com
plete or a merely federal union. The point is sometimes necessarily de
cided by mere territorial magnitude of the united whole . . . This obstacle
does not exist in the case of Italy, the size of which does not come to that
of several very efficiently governed single states in past and present times.
The question then is, whether the different parts of the nation require to
be governed in a way so essentially different that it is not probable the
same Legislature, and the same ministry or administrative body, will give
satisfaction to them all. Unless this be the case, which is question of fact,
it is better for them to be completely united. . . .
“ Whenever it is not deemed necessary to maintain permanently in the
different provinces, different systems of jurisprudence, and fundamental
institutions grounded on different principles, it is always practicable to
reconcile minor diversities with the maintenance of unity of government.
All that is needful is to give a sufficiently large sphere of action to the local
authorities.”32
3. Yet there is one element of truth in the theory of Montesquieu
and Rousseau: the smallest territorial unit—the municipality—is po-
tcntially the most responsive to the will and interests of the people
and, consequently, local self-government must be considered the in
dispensable cornerstone of a modern, large-scale democracy.
But is it possible to assert that the federal structure maximizes local
self-government and that, in a unitary state, we, therefore, find a
shrinkage of local powers? At the outset it must be made clear that
the federal state, as such, docs not mean strong local government,33
and that it therefore is not possible to answer the question abstractly,
but that rather empirical investigations are necessary. In Weimar Ger
many, the states (Lander) were steadily encroaching upon the powers
of the municipalities, and transformed, on a large scale, municipal into
state police power, while the financial resources of the municipalities
proved totally inadequate to finance the new and ever growing tasks
of the welfare state.
This may well be a universal phenomenon or it may vary consider
ably from state to state, or even within each state, according to the
size of the municipalities.
4. W hile we have attempted to demonstrate that there is no neces
sary connection between democracy and federalism, one may go even
beyond it and say that many of the major advocates of federalism are
critics, doubters and even enemies of democracy.34
Tocqucville saw this connection clearly.
“ I have already pointed out the distinction between a centralized govern

ment and centralized administration. The former exists in America, but
the latter is nearly unknown there. If the directing power of the American
communities had both these instruments of government at its disposal
and united the habit of executing its commands to the right of command
ing; if, after having established the general principles of government, it
descended to the details of their application; and if, having regulated the
great interests of the country, it would descend to the circle of individual
interests, freedom would soon be banished from the New World.
“ But in the United States the majority, which so frequently displays
the tastes and the propensities of a despot, is still destitute of the most
perfect instruments of tyranny.
“ . . . when the central government which represents that majority has
issued a decree, it must entrust the execution of its will to agents over
whom it frequently has no control and whom it cannot perpetually direct.
The townships, municipal bodies, and counties form so many concealed
backwaters, which check or part the tide of popular determination.” 35
On the Theory of the Federal State (22 7 )
Madison—in the above quotation—implied it. Calhoun in the United
States and Konstantin Frantz in Germany, are the two best-known
theorists of federalism per se, where the connection between federalism
and anti-democracy is obvious.36
6. W e must, therefore, answer our first question as follows: W hile
it is asserted that federalism maximizes political freedom because
a) it establishes an effective counter-power to the power of the
central government;
b) it curbs the potentialities for evil inherent in power;
c) it maximizes local government and thus promotes grass-roots
democracy;
it has been found that none of the statements can be accepted. It must
rather concretely be demonstrated that a federal system is superior to
a unitary system in maintaining freedom; that this is attributable to
the federal structure and not to the governmental institutions (checks
and balances, attitude of the courts, character and orientation of the
federal administrative services); or to the nature of the party system
(shaped, it is true, by the federal structure); or to the pluralistic and
mobile structure of society; or to simply accidental historical circum
stances; or to a combination of all or some of these factors.
IV
If federalism, as such, has nothing in it that automatically guarantees
the preservation of political freedom, American federalism may have
features that have hindered the solution of pressing economic prob
lems.37 It is not simply that early New Deal legislation was voided by
the Supreme Court in the name of the Tenth Amendment. The
impact of the American federal system, of the division of powers, on
the condition of this country in the thirties was not reassuring.
Mr. George C. S. Benson, in his book, The New Centralization,38
tried to show how federalism worked in the setting of the Great
Depression.
First, he found federalism as an “ obstruction of social legislation/'
The states hesitated to enact this legislation not only for fear of placing
their manufacturers at a competitive disadvantage with manufacturers
of states that did not regulate wages and hours and provide benefits,
but also for fear of driving larger industries into these latter states.39
Secondly, there was great disparity among the states’ financial re
sources. Not only were most states incapable of financing serious efforts
at reform, but “ Complete decentralization—complete local responsi
bility for governmental services—may then result in a ‘spread' between
the standards of different districts which would shock even the un
critical believer in a national ‘American' standard."40
Thirdly, Benson found little evidence that the states were really the
“ experimental laboratories" they were pictured to be.41
Fourthly, the ability of the states to put programs into action in an
efficient way was seriously questioned. “ W ith the exception of such
cases as those noted on page 13 (auditing systems of Massachusetts,
New York, Maryland, Virginia, and New Jersey), state governments
are inferior administratively to the federal government. Two-thirds of
the states lack genuine merit systems for selection of personnel, and
only three or four have salary levels sufficiently high to attract compe
tent administrative or professional staffs."42
Fifthly, Benson found the functioning of many of the state legisla
tures faulty because of a lack of time or money for suitable research.
“ Proponents of states' rights might pause to consider whether the in
crease of federal activity is not so much a result of superior federal
legislative procedure as of superior federal resources."43
Lastly, the nature of the economic system is such that its workings
were and are obviously not confined to the territory of any given city
or state. “ As our great business concerns grow more specialized and
conduct larger-scale operations in an age of complicated machinery,
government cannot be expected to remain simple and pastoral."44
In sum, as Professor Key has written, “ A characteristic of the federal
system seems to be that entrenched interests in the long run can better
protect themselves in dealing with states legislatures than with Con
gress or with federal administrators.” 45
V
The second question, however, still begs an answer: are there goals
that can be attained only through federalism? Obviously, the answer
must be yes, but it requires a careful formulation of the problem.
When the Founding Fathers wrestled with the problem, they did
not ask whether they desired a federal state. They rather, and cor
rectly asked: whether there should be a Union and how far this Union
should go. Once the first question had been answered affirmatively,
On the Theory of the Federal State (22 9)
and once it was clear that the existing territorial units could not be
extinguished, the necessary result was, indeed, a federal state.46
Turning to present-day Europe, we must ask first, shall the various
Western European states co-operate beyond the existing systems of
treaties and of specialized institutions, and, second, if so, how far?
If the first question is answered affirmatively (and I, for one, will
not answer a question which is a European responsibility), and if one
decides that one must go beyond confederation and yet maintain the
existing state structure, obviously only the federal state remains as a
possibility.
It thus seems inadmissable simply to ask whether there should be a
European federal state. This question narrows down the possibilities.
It compels adherents of closer co-operation through a more integrated
treaty system or more specialized agencies, as well as the adherents of
a confederation, to reject a European federal state and—if these form
the majority—to make impossible a higher degree of integration than
would obtain in a federal system.
VI
This paper has tried to show the futility of any discussion of the
merits of federalism as an arrangement considered abstractly. There
are no values that inhere in federalism as such, and federalism cannot
be defended successfully on the grounds that the inevitable tendency
of a unitary state is toward political repression. The testimony of his
tory will not support this assertion, nor will it support the assertion that
a division of constitutional power is the best guarantee of political
freedom. W hen to these considerations is joined that of the financial
inadequacy or political unwillingness of the smaller units to respond
satisfactorily to serious economic troubles, then unrestrained adulation
of federalism seems all the more unwarranted.
Notes
1. See K. C . W heare, Federal Government (Oxford University Press, 1947) p.
15 -
2. Based upon C . Bougl6, Sociologie de Proudhon (Paris, 1908); H . Bourgin,
Proudhon (Paris, 1 9 1 1 ) .
3. For details see Alexander Gray, The Socialist Tradition from Moses to Lenin
(London, 1947), PP* 23 0 -256 ; and G . D. H . Cole, Socialist Thought, The Fore
runners, 17 8 9 -18 5 0 (London, 19 53), PP* 2 0 1- 2 18 .
4. Quotations taken from Lord Acton, by G . Himmelfarb (Chicago, 19 52) a,
p. 220; b, p. 139 ; c, p. 36 4-5.
5. Thucydides, The Peloponnesian W ar, Book V .
6. M y edition of the Spirit of the Laws (Hafner Library of Classics, N ew York,
1949) X I. 4.
7. See my Introduction, ibid, Ivii-lviii [reprinted here].
8. Bowring ed., V ol. IX , pp. 41 ff; and Elie Ilalevy, T he Growth of Philosophic
Radicalism, trans. by M ary Morris (New York, 1928) pp. 458-9 .
9. See my Montesquieu Introduction, pp. Iviii and lxiv [reprinted here].
10 . Also Carl Friedrich, Constitutional Government and Democracy (Ginn &
Co., 1946) pp. 2 16 - 7 .
1 1 . Rudolf Schlesinger, Federalism in Central and Eastern Europe (London,
1 945 ) P - 7 1 -
12 . K. C . W heare, op. cit., p. 29.
13 . For details see Oscar Jaszi, The Dissolution of the Hapsburg Monarchy
(Chicago, 1929) pp. 2 71 ff; R . Schlesinger, op. cit., pp. 18 4 ff.
14. See Eldridge Foster Dowell, A History of Criminal Syndicalism Legislation
in the United States (Baltimore, 1939).
15 . Ibid., p. 47.
16 . Ibid., p. 55.
17 . Ibid., passim.
18 . Ibid., p .10 9 .
19 . Ibid., pp. 14 7 ff.
20. For the dismal record of the states in preserving civil liberties, see W alter
Gellhom , ed., The States and Subversion (Ithaca, 1952).
2 1. Plato, Laws, III, 6 9 1.
Athenian stranger— “ N othing can be clearer than the observation which I am
about to make.
Megillus— W hat is it?
Athenian Stranger— That if any one gives too great a power to anything, too
large a sail to a vessel, too much food to the body, too much authority to the mind,
and does not observe the mean, everything is overthrown, and, in the wantonness
of excess runs in the one case to disorders, and in the other to injustice, which
is the child of excess. I mean to say, my dear friends, that there is no soul of man,
young and irresponsible, who will be able to sustain the temptation of arbitrary
power— no one who will not, under such circumstances, become filled with folly,
that w’orst of diseases, and be hated by his nearest and dearest friends . . .”
22. Edmund Burke, Reflections on the French Revolution (Everyman’s Library),
p. 226.
23. Considerations on the Causes of the Grandeur and Decadence of the R o
mans, trans. by John Baker (New York, 1882).
24. The Spirit of the Laws, V II I , 16, and my Introduction, p. xliii.
25. The Social Contract, G . D. II. Cole, translation, III, xv.
26. Hamilton, No. IX .
27. Montesquieu, The Spirit of the Laws, IX , i.
28. Gilbert Chinard, ed., Jefferson's Commonplace Book (Baltimore and Paris)
p. 267.
29. See Friedrich Ratzel, Politische Geographie (Munich and Berlin, 19 23).
30. Carl Friedrich, Constitutional Government and Democracy, Revised edition
(Boston, 1950), pp. 546 -570 .
On the Theoryr of the Federal State (231)
3 1. The Federalist, N o. X L V .
32. Representative Government (Everyman ed.), pp. 3 7 4 - 5 .
33. Roscoe Pound, "L a w and Federal Governm ent/’ in Federalism as a Demo
cratic Process, Essays by Roscoe Pound, Charles H . M cllw ain, and R oy F . Nichols
(Newark, 1942). Pound equates, or confuses, localism and federalism: "E ven if the
lines cannot be drawn at any one time absolutely— and in law and politics which
deal with life none can be so drawn— the national and the local are distinct at the
core, and the experience of English-speaking peoples has shown that local matters
are best dealt with in the locality instead of by postulated ex officio supermen at a
distance.” (p. 2 1)
34. A. V . Dicey, Introduction to the Study of the Law of the Constitution,
(Ninth edition, London, 1950).
"O ur survey from a legal point of view of the characteristics common to all
federal government forcibly suggests conclusions of more than merely legal interest,
as to the comparative merits of federal government, and the system of Parliamentary
sovereignty.
"Federal government means weak government.
. . no more curious instance can be found of the inconsistent currents of
popular opinion which may at the same time pervade a nation or a generation than
the coincidence in England of a vague admiration for federalism alongside with
a far more decided feeling against the doctrines of so-called laissez faire. A system
meant to maintain the status quo in politics is incompatible with schemes for wide
social innovation.
"Federalism tends to produce conservatism.
" . . . T he difficult}’ of altering the constitution produces conservative sentiment,
and national conservatism doubles the difficulty of altering the constitution . . .
T o this one must add that a federal constitution always lays down general principles
which, from being placed in the constitution, gradually come to command a super
stitious reverence, and thus are in fact, though not in theory, protected from
change or criticism . . .
“ Federalism, lastly, means legalism— the predominance of the judiciary in the
constitution— the prevalence of a spirit of legality among the people.
. . Federalism substitutes litigation for legislation, and none but a law-fearing
people will be inclined to regard the decision of a suit as equivalent to the enact
ment of a law.” (pp. 1 7 1 - 1 7 9 )
35. Alexis de Tocqueville, Democracy in America (New York, 1945) 2 vols.,
Vol. I, pp. 2 7 1 - 2 .
36. John C . Calhoun, A Discourse on the Constitution and Government of the
United States, in The W orks, V ol. I (New York, 1854) pp. 16 8 -9 , 233—4, 2 4 1,
268, 383-6 , 392; Konstantin Frantz, Der Foederalismus als das leitende Princip
fiir die sociale, staatliche und Internationale Organisation . . . (Mainz, 1879).
37. For a discussion of this situation in Australia, see A. P. Canaway, The
Failure of Federalism in Australia (London, 1930).
38. George C . S. Benson, The New Centralization (New York, 19 4 1). On this
problem see, in addition, Harold Laski, "T h e Obsolescence of Federalism,” T h e
New Republic, 98: 36 7-36 9, M ay 3, 19 39 .
39. Benson, op. cit., pp. 23 -24 .
40. Ibid., p. 30.
41. Ibid., p. 38.
42. Ibid., p. 40.
(2 3 2 ) On the Theory of the Federal State
4 3. Ibid., p. 42.
44. Ibid., p. 42.
45. V . O. Key, Jr., Politics, Parties, and Pressure Groups, Third Edition (New
York, 1952) p. 102.
46. See Hamilton in The Federalist, IX , X V , and the above Madison quotation
from The Federalist.
[chapter 9]
<[ <[
N O T E S ON THE T H E O R Y OF
D IC T A T O R S H IP *
I. Definition of Dictatorship
Strange though it m ay seem , we do not possess any systematic study
of dictatorship.1 The historical information is abundant, and there are
many analyses of individual dictators in various countries. But there is
no analysis that seeks to generalize not only from the political experi
ence of the twentieth century, but from the political systems of the
more distant past. The present paper attempts to outline the theoreti
cal problems encountered in the analysis of dictatorship and to indi
cate whatever answers now can be supplied.
By dictatorship we understand the rule of a person or a group of
persons who arrogate to themselves and monopolize power in the
state, exercising it without restraint.
The first question raised by this definition is whether the Roman
dictatorship and the absolute monarchy should be included in its
scope.
It seems more appropriate to classify the Roman dictatorship (prior
to Sulla) not as a dictatorship properly speaking, but as a form of Crisis
Government.2 This may seem arbitrary, for the very word “ dictator"
derives from Roman constitutional law. Nevertheless, the Roman dic
tatorship was a magistracy, clearly defined in authorization, scope and
duration, and it ought not to be confused with a political system in
which power is arrogated by an individual or a group, and which does
not circumscribe either the scope or the duration of dictatorial power.3
* Franz Neumann died before he could complete the final version of this article.
T he manuscript was edited by Julian Franklin of Columbia University', but no
substantive changes were made, and the still existing gaps were not filled.
(*33 )
(234) Notes on the Theory of Dictatorship
The Roman dictator4 was appointed by one of the consuls5 for a period
not to exceed six months,6 to defend the country against an external
enemy or to cope with internal dissension.7 He was duty-bound to ap
point at once a Master of the Horse for the command of the cavalry;
he had no authority to change the constitution, to declare war, to inter
vene in civil law suits, or to impose new fiscal obligations upon Roman
citizens. W ithin these limits, the sovereign power of the Roman peo
ple was concentrated in his hands. The consuls became his subordi
nates; the tribunician power of intercession did not apply against his
acts; nor could a citizen condemned in a criminal trial invoke the
normal right of appeal (provocatio) against him.8
The Romans resorted to dictatorship because the collegiate nature
of the magistracy, including the consulate, and the one-year restriction
on its term, made the conduct of war extremely difficult. But the dic
tatorship itself was to prove unsuitable for wars of long duration. By
the end of the fourth century it was already in decline, reappearing in
irregular forms during the Punic Wars and disappearing at the end of
the Second Punic W ar (201 b .c .). From then on, the Roman dictator
ship (e.g., Sulla's and Caesar’s) changes its character radically, in a
manner later to be discussed.9
The second problem that our definition raises is the relation between
monarchy and dictatorship. The title of the absolute ruler—whether he
is designated King, Emperor, Leader or Duce—is not decisive here.
This was already recognized by Aristotle,10 who held the rule of kings
among non-civilized (non-Hellenic) peoples to be “ similar to that of
tyranny” and who defined his fifth type of kingship, the case “ where
a single power is sovereign on every issue, with the same sort of power
that a tribe or a polis exercises over its public concerns,” as a Pamba-
sileia,11 an all-kingship or super-kingship.
Actually, from the standpoint of the exercise of power the absolute
monarch is a dictator, but from the standpoint of the legitimacy of
power, he is not. W e may speak of legitimate monarchical rule when
ever accession to power is constitutionally regulated by heredity or by
election and monarchical rule is generally accepted as the normal form
of government. These criteria are rather vague—but so is the actual
situation. In the history of political and constitutional thought, the
ruler who comes to power through a coup d’etat (absque titulo) is held
to be an usurping tyrant, but he may rid himself of this stigma if he
Notes on the Theory of Dictatorship (2 3S)
succeeds in formally establishing his rule and that of his line, which
then becomes “ legitimate.” On the other hand it was also generally
held that a monarch who acceded to the throne legitimately could
degenerate into a tyrant through his acts (quoad exercitio). Thus,
while one may distinguish in principle between monarchy and dic
tatorship, one must realize that the principle suffers many exceptions
and that, consequently, certain forms of the absolute monarchy must
also be treated as forms of dictatorship.
Our definition, furthermore, envisages dictatorship only in the state,
and in no other social organization. There may be situations in which
absolute power of a party boss or of the pater familias may help us
understand the mechanisms leading to a dictatorship or serving to
maintain its power. But there is as yet no convincing evidence that the
dictatorial structure of social organizations necessarily leads to or facili
tates political dictatorship. An example is the ambiguity of the social
and psychological role of the so-called “ authoritarian family.” 12 The
authoritarian (quasi-dictatorial) family may lead, as some maintain, to
a more ready acceptance of political dictatorship,13 but dictatorship
may also be promoted (and more frequently, perhaps) by the decay of
traditional authority, by the very undermining of the authority of
the father.14 The relation between political and social forms of au
thoritarianism must, therefore, be taken as a special problem, and not
as an automatic correlation.
Moreover, we deliberately do not distinguish among a dictator, a
tyrant, and a despot. Tyranny and despotism have no precise meaning.
One usually associates despotism with oriental dictatorships, whereas
tyranny is often used to designate any system of government that either
in its origin or in its practice is tainted by unconstitutional practices or
characterized by lack of restraints. Both words are emotionally charged
and exhibit in varying degrees rejection and resentment of these sys
tems of government.
Rejection of the terms “ tyranny” and “ despotism” does not mean,
however, that within the general definition of dictatorship there are
no subtypes. A number of distinctions are significant.
The first pertains to the scope of the political power monopolized
by the dictator. The dictator may exercise his power through absolute
control of the traditional means of coercion only, i.e., the army, police,
bureaucracy and judiciary. W e may call this type a simple dictatorship.
In some situations, the dictator may feel compelled to build up
popular support, to secure a mass base, either for his rise to power or
for the exercise of it, or for both. W e may call this type a caesaristic
dictatorship, which, as the name indicates, is always personal in form.
Even this combination of monopolized coercion and popular back
ing may be insufficient as a guarantee of power. It may be necessary to
control education, the means of communication and economic insti
tutions and thus to gear the whole of society and the private life of the
citizen to the system of political domination. The term for this type
is totalitarian dictatorship. It may be either collective or personal, that
is, it may or may not have a caesaristic element.
It need hardly be mentioned that these classifications are ideal types
which will only approximate historical realities. They will help us,
however, to understand the structure of the various cases of dictator
ship.
II. Caesaristic Dictatorship

The simple dictatorship—whether it be military or bureaucratic, the
rule of a junta, a caudillo, or even an absolute monarch—is exercised
primarily through the control of what one may call the classical in
struments of rule: army, police, bureaucracy, judiciary. This limitation
is due less to self-imposed restraints than to the absence of any need
for more extensive controls. Simple dictatorship usually occurs in
countries where the masses of the people lack political awareness,
where politics is the affair of small cliques who compete for favors and
hope to gain prestige and wealth by association with the dictator. The
mass of the people pay taxes and may have to serve in the army, but
otherwise have little to do with political life. The only social controls
which may be needed are bribery and corruption of a few influential
individuals in order to tie them closely to the system.
In the caesaristic dictatorship a new element enters: the need for
popular support. The term “ caesarism" was apparently coined by
Romieu in his little book L ’Ere des Cesars (1850) and its climate most
adequately described by Guizot, Louis Philippe's Prime Minister after
the revolution of 1830.
“ Chaos," says Guizot, “ is now hiding under one word—democracy.
This is now the ultimate and universal word all seek to appropriate as
Notes on the Theory of Dictatorship (2 37 )
a talisman. The Monarchists say: Our Monarchy is a Democratic
Monarchy; it differs essentially from the ancient monarchy and is
adapted to modern conditions of society. The Republicans say: The
Republic is Democracy governing itself. This is the only form of gov
ernment in harmony with democratic society, its principles, its senti
ments, and its interests.
“ Socialists, Communists, Montagnards wish that the Republic
should be pure and absolute democracy. This is for them the condition
of its legitimacy.
“ Such is the power of the word democracy that no government or
party dares to exist or believes it can exist without inscribing that word
upon its banner/’15
Caesarism becomes a necessity when the masses tend to become
politically articulate. Let me briefly sketch a few caesaristic experi
ments.
1. Kings Agis IV (244 b.c.) and Cleomenes III (238 b .c.) of Sparta.16
After her crushing defeat at Leuctra in 371 b.c., Sparta faced a twofold
problem: maintenance of her external power, and social (agrarian)
revolution. Both problems were interconnected, as Plutarch observed
when discussing Cleomenes’ policy:
“ It was dangerous, now Agis was killed, so much as to name such a
thing as the exercising and training of their youth: and to speak of the
ancient temperance, endurance, and equality, was a sort of treason
against the state.” 17
“ . . . [Observing the citizens of all sorts to be debauched, the rich
neglecting the public good and intent on their private gain and pleas
ure, and the poor distressed in their own homes and therefore without
either spirit for war or ambition to be trained up as Spartans, that he
had only the name of King, and the ephors all the power, he [Cleo
menes] was resolved to change the posture of affairs.” 18 Thus Cleo
menes carried out a coup d’etat to increase his royal power and,
apparently under the influence of Stoicism, to ensure equality by
abolishing the division of lands among the citizens and by augmenting
the number of citizens.
2. Pisistratus (560-527 b .c .) is among the best known of ancient
caesaristic dictators because his “ noble qualities and beauty” 19 have
always attracted love and admiration even from those who despised
him as a tyrant. Moreover, his tyranny most clearly exhibits both the
social configuration of caesarism and its techniques. The Solonic re
forms had not established democracy in Athens, for the power of the
aristocracy, although checked, had not been broken.20 Solon's eco
nomic policy, in promoting industry and attracting immigrants, had
created a socio-economic situation that led to an intensive class strug
gle. Pisistratus—rich, aristocratic, highly educated-made himself the
leader of the impoverished peasants, the party of the Hills—as against
the rich party of the Plains, the city party, and the party of the Shore,
that of the merchants and fishermen. He seized power, surrounded him
self with a bodyguard, and, without changing the Solonic constitu
tion,21 actually carried out a large-scale program of socio-economic re
forms.22 The estates of the nobles were confiscated and distributed
among the poor peasants; waste land was cultivated; maritime trade en
couraged;23 a program of public works carried out; and the administra
tion of justice equalized by the creation of local justices in the country
districts. The dictator’s power was absolute. He “ told the puppets how
to dance.” 24 Yet Aristotle remarks—and the farming class of the time
apparently agreed with him—that “ the tyranny of Pisistratus had been
the Golden Age.”
3. In continuing to review some caesaristic dictatorships, we are not
motivated by antiquarian curiosity. Rather we want to establish a few
principles which help us understand the conditions giving rise to
caesarism, the techniques it employs, and the social function it per
forms. Much, therefore, is to be learned from Julius Caesar whose
name came to designate this type of dictatorship.
The gradual disintegration of the Roman constitution between the
Second Punic W ar and the murder of Caesar is familiar in its major
outlines and need not be elaborated in detail. Personal dictatorship was
foreshadowed as early as the close of the Second Punic W ar by the
political pre-eminence of Scipio Africanus. And the first clear-cut re
jection of the Roman constitution was Sulla’s dictatorship about a
century later, for although it traded on the name of the classical emer
gency magistrate, it was a dictatorship for life and its purpose was to
change the constitution by undoing such semi-democratic reforms as
the new powers of the tribunate and by restoring the sway of the sena
torial oligarchy (optimates). But Sulla’s system could not achieve this
restoration. Less than ten years after his departure from the political
scene, his system collapsed and the Republic was in full decline. “ Non
Notes on the Theory of Dictatorship (239)
mos, non ius” said Tacitus,25 describing the collapse of morality and
law. “ You see that there is no Republic, no Senate, no dignity in any
of us” —thus wrote Cicero in a letter to his brother Quintus.28
Julius Caesar’s rise to power is due to a number of factors: the dis
integration of the constitution; his personal control of a dedicated
army; the support of the so-called party of the populares; the rise of
the equestrian order to economic power; the discontents of the non-
Roman Italian population; and the expansion of the Empire. His
position, by the time of his death, could not conceivably be reconciled
with the constitutional structure of the Republic. He was an absolute
monarch in fact27 But it is important to note that, much as Caesar
would have liked it, he could not, in view of public opinion, take on
the title of King 28 Brutus’ deed shows the strength of republican feel
ings in Rome which are important for the understanding of Augustus’
constitutional arrangements.
Modern historians do not tire of arguing that there really was no
“ democratic” party or movement in Rome, that the populares were
in reality a city mob manipulated and bribed29 by aristocratic cliques
held together by the institution of amicitia (friendship) and organized
into facriones or partes.30 This is undoubtedly true. Yet it would be
dangerous to construe Roman politics simply as a fight of the “ ins”
against the “ outs” and thus to overlook the political impact of major
social problems: the equestrian order’s rise to economic power—with
out corresponding political recognition; the control of political power
by a landed oligarchy that no longer monopolized economic power;
the deterioration of the position of the small peasants (the Gracchi
had already attempted to create an absolute, caesaristic monarchy with
their support); the existence of a city plebs—legally defined as those
without income or occupation but, through its assemblies and tribunes,
exceedingly powerful politically; and finally, the problems of an ever
growing empire—the need for defense and communications, and the
struggles for participation in the spoils. Seen against this background,
caesarism was more than the attempt of a powerful person to make
himself supreme; it was in fact the means for reorganizing Rome, Italy,
and the Empire. And even if we do not accept Mommsen’s image of
Caesar as the genius who from the very beginning had set out to do
precisely this, the fact remains that these problems brought him into
power and that he coped with them, often quite successfully.
Augustus’ triumph serves to underline the fact that these social and
economic changes had made monarchy inevitable. As Dion Cassius
put it: “ At this time [after the defeat of Antonius at Actium in 31] the
government assumed a better and more salutary form, for it was quite
impossible for the Romans to save themselves with the Republican
constitution/’31 But what kind of monarchy? The resurrection of the
old Roman kingship (the Rex) proved impossible. Caesar’s death was
a warning not to attempt it. The Hellenistic (oriental) monarchy with
the deification of the monarch, the proskynesis, and the complete
identification of monarch and state32 was not only an alien tradition,
but was associated with Antonius and Cleopatra and ruled out by
their defeat. Dictatorship for life, voted by the people, had become al
most equally disreputable. Augustus, with his unusual political shrewd
ness, realized that his personal power must be made to fit the consti
tution. Prior to 27 b .c ., all positions he held—admission to the Senate
at the age of 19, consular rank, etc.—were irregular33 but, so he says,
“ All Italy took the oath to me spontaneously and demanded me as
leader in the war in which I won the battle of Actium. . . ” 34 After
27 b .c ., in what Homo calls the organic period, Augustus’ Principate
was established in what he alleged to be a completely constitutional
form. “ The Dictatorship was conferred upon me, in my absence and
in my presence, by the People and Senate . . . and I did not accept it
(22 b .c .). The Consulship for the year and for life was given me at the
same date, and I did not accept i t . . . I accepted no function contrary
to the usages of our fathers.. . . When the people offered me the posi
tion of Pontifex Maximus (which my father had h eld). . . I refused it.”
And he continues: “ . . . When I had put an end to the civil wars . . . ,
I transferred the government of the State from my hands to those of the
Senate and the Roman people. In return for this service, I was given
the title of Augustus. . . . Since that time I have been above all in
authority [auctoritate] but have had no more power [potestas] than
those who have been my colleagues in magistracies.” 35
This touching modesty came cheap enough, for Augustus had al
ready proscribed the bulk of his opponents and now, invoking his
auctoritas, he saw to it that his own men occupied all the positions of
influence and power. The patronage system was thus refined and skill
fully employed. The Senate was purged, mainly to eliminate adherents
of the late Antonius; wealthy plebeians friendly to Augustus rose easily
into the equestrian order, and equestrian bankers and traders were ele
vated to the rank of optimatcs.36 Moreover, propaganda and the sup
pression of oppositional and critical literature were used to consolidate
support, and in his later years Augustus assumed the religious dignity
of the Pontifex Maximus in order to further his prestige. But the politi
cal victory was consolidated, above all, by changes in the social hier
archy: the doom of the no biles and the rise of homines no vi in society
and politics.
After 27 b . c . Augustus depended for his constitutional powers pri
marily on two positions: the imperium proconsular mafus and the
potestas tribunicia37—both of which he held for life. The former gave
him command of the armies in Rome and in the provinces; the latter
—granted to him with extended powers—sacrosanctity, the right of
intercession, and above all, the democratic legitimation.
This last point is especially important, because the potestas tribunicia
is the source of the lex regia which, in the formula attributed to
Ulpian,38 was the principle that “ the will of the Princeps has the
force of law for, in virtue of the lex regia . . . the people . . . transfers to
him all its imperium and all its potestas ” And again in the Code of
Justinian: “ In virtue of the ancient law which was called lex regia, all
the right and all the potestas of the Roman people have been trans
ferred to the Imperial potestas/’39 W e now know that some such
formula was actually enacted,40 although of course popular sovereignty
after Claudius became a mere fiction. And the Roman people (populus
Roman us) remained sovereign in law and the source of all political
authority,41 even though the later emperors, influenced by Hellenistic
conceptions, added a divine legitimation to the pseudo-democratic lex
regia.
5. The tribunician power and the lex regia lead us to the dictator
ship of Cola di Rienzo, which is one of the most fascinating of caesar-
istic dictatorships 42 Cola di Rienzo, son of a publican and a washer
woman, was bom in Rome in April or May 1313, during the Baby
lonian captivity of the Papacy (1309-1376). Lacking the income of the
Papal court, the Roman population was in a state of economic distress.
Its government, moreover, was a sham. The quarrels of the feudal
barons, particularly those of the Orsini and Colonna, despoiled the city,
which was further split, as in Roman times, into three parties: the
nobility (themselves not united), the bourgeois equestrians (economi
cally rich but politically powerless), and the popular party. In his
famous letter, written to Cola and the Roman people shortly after
Cola's seizure of power,43 Pctrarca described the situation thus: “ These
barons in whose defense you have so often shed your blood, whom you
have nourished with your own substance, whom you have raised to
affluence to the detriment of the state revenues, these barons have
judged you unworthy of liberty. They have gathered the mangled
remnants of the state in the caverns and abominable retreats of ban
dits. They have felt no shame that their crimes were known abroad.
They have been restrained neither by pity for their unhappy country,
nor by love for it; they have seized the strongholds, the public revenues,
and the regions of the city . . .” And then, after a still more detailed
indictment, he enjoins: “ Do not suffer any of the rapacious wolves
whom you have driven from the fold to rush again into your midst.
Even now they are prowling restlessly around, endeavoring through
fraud and deceit . . . to regain entrance to that whence they were vio
lently expelled."
Cola's assets in the rise to power were his leadership of the popular
party which he achieved as a kind of people's lawyer, his alliance with
the wealthy bourgeoisie (the cavalerotte), and the support of the Pope,
who was not, however, aware of Cola's ultimate design. Rome herself
was the source of Cola's inspirations; the memory of ancient glory
hewn in marble columns, the old republican tradition, and more par
ticularly the idea of the tribunician power and the lex regia. Fused
with his religious chiliasm44 these images fed young Rienzo in his
triumphal rise to caesaristic leadership. In Cola’s skillful propaganda
the coup d’etat of 1347, prepared by shrewd diplomacy, became an
invocation of providence by the guardian of an almost puritan mo
rality,45 and an act of liberation by the champion of all who were op
pressed. The new leader used the lex regia to install himself as ruler.46
Represented by a sordid crowd, the Roman people—as owner of the
sovereignty—conferred upon Cola the tribunician office and dictatorial
power, as well as the fantastic title, “ Nicolaus, the Strict and Gracious,
Tribune of Liberty, Peace and Justice, Liberator of the Holy Roman
Republic."47
To analyze Cola di Rienzo's policies could lead far afield. Suffice it
to say that his administration was generally sound and progressive,
notwithstanding his rapid assumption of the role of a charismatic
Notes on the Theory of Dictatorship (2 43)
leader. But in order to maintain his power Cola would have had to de
velop even more intensively the totalitarian trends that appeared in
his administration, for his major problems were to gain an adequate
social base and to eliminate his enemies, the barons. In both of these
he failed. The bourgeoisie, on whom he depended for social and mili
tary support, proved an unreliable ally. The barons were humiliated
publicly but, whether from fear or inborn decency, Cola did not liqui
date them. This halfway policy doomed the regime to collapse when
the Papacy combined with the opposition. The dictator was forced to
abdicate, became a fugitive in Italy, and went as a prisoner first to the
Imperial Court at Prague and thence to Avignon. Thanks to the Pope,
who wished to use him as a weapon against a recalcitrant barony, Cola
was reinstated in 1354 with the enthusiastic approval of the people.
Now, however, he was no longer the caesaristic leader, but the servant
of the Church, depending on its influence and on mercenary troops.
And the end came when the Colonnas had him publicly assassinated
and his body mutilated and burned. But while he lived, Cola’s influ
ence was quite extraordinary. When he abdicated, the poor of Europe
turned out in thousands to greet him as the democratic hero. To the
oppressed masses he appeared as the incarnate answer to their longings.
6. I have dealt with Cleomenes, Pisistratus, Caesar, Augustus, and
Cola di Rienzo in some detail because in these cases the facts may not
be so familiar. For the major caesaristic figures in modem history—
Savonarola, Cromwell, Napoleon I, Louis Napoleon, Mussolini, Hitler,
Peron—historical details will be unnecessary. It might be noted, how
ever, that elements of caesarism also arose in the Roman Catholic
Church out of the struggle between papal sovereignty and the conciliar
position. The mendicant orders, representing the democratic element,
were enlisted in the papal cause against the aristocratic element whose
program was conciliar.
III. Totalitarian Dictatorship

Totalitarian dictatorship, to which our attention now will be di
rected, ought not to be confused with caesarism. Up to the nineteenth
century at least, caesaristic dictatorship does not necessarily lead to a
totalitarian system, nor is the totalitarian state necessarily the result of
a genuine caesaristic movement. Totalitarianism is thus a separate
problem. For the purpose of a brief discussion the modern totalitarian
dictatorship may be reduced to five essential factors.
The first of these is the transition from a state based upon the rule
of law (the German Rechtsstaat) to a police state. The rule of law is a
presumption in favor of the right of the citizen and against the coercive
power of the state. In the totalitarian state this presumption is re
versed. Details need not concern us here, since the power of executive
agencies in totalitarian states to interfere at discretion with life, liberty
and property may be taken as the best-known feature of this kind of
dictatorship.
The second factor is the transition from the diffusion of power in
liberal states to the concentration of power in the totalitarian regime.
This concentration may vary in degree as well as form. But there is no
role in any totalitarian state for the various liberal devices of diffusing
power, such as separation of powers, federalism, a functioning multi-
party' system, bicameralism, etc.
These first two elements, however, are to be found in the absolute
monarchy as well as in the totalitarian dictatorship. W hat distinguishes
totalitarianism politically is the third element, namely, the existence
of a monopolistic state party. Such a party is required because the tra
ditional instruments of coercion do not suffice to control an industrial
society, and all the less so since bureaucracies and armies may not al
ways be reliable. The monopolistic party is a flexible instrument which
provides the force to control the state machine and society and to
perform the gigantic task of cementing the authoritarian elements
within society together.
Moreover, the monopolistic party' involves a socio-psychological
aspect pertaining to what is commonly called a “ mass" society'. Since
modern totalitarian dictatorships arise, almost without exception, with
in and against democracies (weak though the democratic structures
may have been), the totalitarian clique has to assume the shape of a
democratic movement and to retain this facade even after it has come
to power. In other words, it is forced to practice the ritual of democracy
even though the substance is totally denied.
The role of the monopolistic party involves the fourth element of
the totalitarian dictatorship: the transition from pluralist to totalitarian
social controls. Society ceases to be distinguished from the state; it is
totally permeated by political power. The control of society, now as
important as the control of the state, is achieved by the following tech
niques :
(1) The leadership principle—to enforce guidance from the top and
responsibility to the top.
(2) The “ synchronization” of all social organizations—not only to
control them, but to make them serviceable to the state.
(3) The creation of graded elites—so as to enable the rulers to con
trol the masses from within and to disguise manipulation from
without, i.e., to supplement bureaucracies in the narrow mean
ing of the term with private leadership groups within the vari
ous strata of the population.
(4) The atomization and isolation of the individual, which involves
negatively the destruction or at least weakening of social units
based on biology (family), tradition, religion, or co-operation in
work or leisure; and positively the imposition of huge and un
differentiated mass organizations which leave the individual iso
lated and more easily m anipulate.
(5) The transformation of culture into propaganda—of cultural
values into saleable commodities.
The final factor in totalitarianism is the reliance upon terror, i.e., the
use of non-calculable violence as a permanent threat against the indi
vidual. Care must be taken, however, not to define a totalitarian dic
tatorship simply as the rule of violence. Without it, it is true, such
regimes could not survive. But they could not endure for any length
of time without considerable identification by the oppressed people
with its rulers.
These, in brief outline, are the features of the most repressive of
political systems. W hat distinguishes it from absolutism is not pri
marily the caesaristic element, for this was also characteristic of the
absolute monarchy in certain periods of its history, but rather the
destruction of the line between state and society and the total poli
ticization of society by the device of the monopolistic party. This is
not merely a question of more or less political power. The difference
is one of quality, not quantity. Where, as in the absolute monarchy,
power is primarily exercised through the traditional bureaucratic in
struments of coercion, its operation is governed by abstract, calculable
rules, although their execution often may be arbitrary. Absolutism,
therefore, already contains the major institutional principles of modern
liberalism. Totalitarian dictatorship, on the other hand, is the absolute
negation of these principles because the main repressive agencies are
not courts and administrative bodies, but the secret police and the
party.
A fully developed totalitarian dictatorship is the form an industrial
society may adopt if it should become necessary to maximize its re
pressive elements and eliminate its liberal ones. But totalitarian dic
tatorship is not the child of modern industrialism alone. Sparta and
the regime of Diocletian may be briefly discussed as two illuminating
earlier experiments.48
Those who call Sparta a democracy perniciously forget that the
Perioici and, more importantly, the Helots (state serfs) were decisive
for its institutions. The case is perhaps otherwise with Athens, where,
as Westermann and Jones49 have shown, slavery was relatively insig
nificant. But the ratio of Spartans to Helots was about 1:20, and the
perpetual danger from the Helots required a system of total repression.
Plutarch50 saw the problem when he described the horrors of the in
famous Crypteia, the missions of young Spartans armed with daggers,
which the Ephors sent out secretly “ from time to time” to terrorize and
assassinate Helots. Thucydides31 also refers to the appalling slaughter
of 2,000 Helots in 424 b .c . Service in this dreadful secret police was
part of the training of the Spartan youth, for terror, rather than criminal
sanction, constituted the backbone of the Spartan system.
The cohesion of the ruling stratum was achieved by the total control
of society and of private life through such well-known institutions as
the transfer of the children at the age of six to barracks, and the rigid
system of state education emphasizing cunning and violence. It is
most illuminating to compare Plutarch's description of the Spartans’
“ liberal” education with Himmler’s recipe for the education of Rus
sians under German occupation. Plutarch says, “They learned to read
and write for purely practical reasons, but all other forms of education
they barred from the country, books and treatises being included in
this as much as men.” 52 And Himmler: “ All they may learn is to count
till 12 and to write their names. Beyond this, education is dangerous
and not to be countenanced.”
W e must remember that this totalitarian dictatorship was without a
caesaristic element. None was needed due to the completely static
character of Sparta's economy and society. Wealth had only two
sources: agriculture and robbery (through war). Corruption was enough
to make the system function so long as its static character (the pattern
of landholding) was maintained. It was the gradual concentration of
wealth in the hands of a few which produced Cleomenes' unsuccess
ful effort to revitalize Sparta through a caesaristic dictatorship. In the
end, the Spartan government degenerated into the personal rule of
Nabis who, with the cruelty of an oriental despot, seems to have re
stored the agrarian system and much of the discipline.
Whereas Spartan society was static, the Western Roman Empire
was declining in the time of Diocletian, and a totalitarian dictatorship
with a corporate system arose as an attempt to stem the economic tide.
The decrease in the number of slaves, which was not accompanied
by the increased use of technology, caused the migration of commerce
and industry from the West, the growth of a manorial system, and the
transformation of free tenant farmers into serfs (Constantine's edict
of October 30, 332). The money economy collapsed; the towns de
clined; and class distinctions became ever more oppressive—the ma
norial owners, the priesthood, a few rich city families, and the civil
servants forming the honestiores, while all others became humiliores.
Inflation advanced and urban families refused to assume municipal
office because the financial burdens of such posts were now intolerable.
In order to cope with this disintegration of economic life, Aurelian
(270-275), Diocletian (284-305), and Constantine (306-337), sought
to set up a corporate state which would guarantee the supply of labor
and production. All trades and professions were organized into guilds,
and guild membership became compulsory and hereditary. Mine and
quarry workers were branded; bakers were forbidden to marry outside
the families of their fellow-workers; and “ soon enrollment in the
collegia (guilds) . . . appears as an official punishment for any criminal
who has hitherto avoided incorporation."53 In 301, Diocletian at
tempted to counter inflation by fixing prices and minimum wages, writh
death penalty for any breach, and finally the state itself felt compelled
to enter industrial production. The secret police (frumicutarii), formed
under the enlightened Hadrian, enjoyed uninterrupted growth.
Historians generally agree that this ruthless policy of social regi
mentation saved the Empire from total collapse and thus allowed the
transmission of at least part of the classical heritage to the West.
IV. Democracy and Dictatorship
If we review the various types of dictatorships outlined above, we are

forced to conclude that the usual confrontation of liberal democracy
vs. dictatorship as an antithesis of good and evil, cannot be maintained
from a historical point of view. Moralizing about political systems
makes it difficult to understand their functions. The relationship be
tween democracy and dictatorship is not as simple as is sometimes
stated.
1. Dictatorships may be an implementation of democracy. But this
refers to emergency dictatorships with functions similar to the
classical Roman type, which we prefer to classify as a kind of
magistracy.
2. Dictatorships may be the preparation for democracy. W e may
then speak of an educational dictatorship.
3. Dictatorships may be the very negation of democracy and thus
be a totally regressive system.
Pisistratus’ rule is probably a classical example of an educational dic
tatorship. As Werner Jaeger puts it: “ The masses were still politically
inexperienced, so that democracy was far aw’ay: it could not come
until the aristocracy had been brought low by the Pisistratic tyrants.”
W e may add that the great function of the Pisistratidae was the crea
tion of an Athenian national (or collective) spirit. This was done by
facilitating the emergence of a “ middle class,” which Aristotle believed
to be the social prerequisite of democracy. Hence, without the work of
Pisistratus the regimes of Cleisthenes and Pericles would hardly be con
ceivable.
It is well to remember that the Marxist-Leninist conception of a
dictatorship of the proletariat was democratic precisely in this sense
of a preparatory dictatorship. The concentration of power in the hands
of the proletariat was to be used to abolish class rule altogether and
to herald a new epoch of freedom in a classless society. That it was not
this expectation but the very opposite which materialized cannot be
discussed in detail here. However, we may cite the basic reasons why,
under modem conditions, every dictatorship tends to be a totalitarian
dictatorship and to involve the negation of democracy.
The democratic ideology has become so universal that Guizot's
statement seems even truer today than it did in 1848. All modern die-
Notes on the Theory of Dictatorship (2 49)
tatorships arose from democratic conditions. This is true of Italy, Ger
many, Spain, Argentina, and perhaps even of the U.S.S.R., although to
a lesser degree.
The dictator is therefore compelled to seek mass support and, having
obtained it, to practice the ritual of democracy even if its substance is
withheld. As Engels already saw, a coup d’etat seems hopeless against
a modern army; the dictator can come to power only with the help or
toleration of the army, but to sustain his power, he depends on a mass
base.
There is, however, an important distinction between the Fascist-
Nazi type and the Bolshevik. In the former, the dictator could rely
upon substantial sectors of the traditional ruling groups (industry,
finance, agrarians, army, bureaucracy, judiciary) which were committed
to a minimum of formal legality since overt rebellion would have
jeopardized their own status and security. Consequently, the dictator
ship in its rise to power had to play the democratic game (compare
Hitler’s strategy before his Beer Hall Putsch of 1923 and afterwards).
And once it had attained this goal, the requirements of competition
with the outside world and the need to secure the active or passive co
operation of industrial labor, led the Nazi-Fascist type of dictatorship
to present itself as a higher and nobler form of democracy.
For the Bolsheviks the need for mass support is of a different nature.
The original theory of the dictatorship of the proletariat as the dictator
ship of the majority over a minority was compatible at least with one
version of democracy. But the Russian proletariat was a small minority
in 19 17, and with the Bolshevik rejection of Trotsky’s theory of a
permanent revolution, the democratic mass base had to be secured
from among the peasants. When this was not voluntarily forthcoming
the Bolshevik regime evolved into a full-blown totalitarian dictatorship.
But even in agrarian, colonial, and semi-colonial countries, where
democracy did not exist or was inadequately practiced, modern dic
tatorship tends to become totalitarian. Today every nation experiences
democracy vicariously. Due to the world-wide scope of communica
tions, even the most backward peoples have become aware of democ
racy and want it, awakening mass consciousness usually taking the
form of a demand for national emancipation. Consequently, here too
a dictator must attempt to be a Caesar by acting out the democratic
ritual even if he is compelled to go on towards a totalitarian regime.54
(2 5 °) Notes on the Theory of Dictatorship
V. The Social Function of Dictatorship

Neither the attraction of a democratic ideology nor the scope of the
dictatorship can fully explain the phenomena of caesarism and totali
tarianism. An understanding of the social function of dictatorship
would require a comprehensive analysis based upon the following
elements:
(a) The economic system;
(b) The class relationship;
(c) The personality structure.
In each historical situation these factors—economic, social, and psy
chological-must be treated as a unity, not as isolated, independent
causes. An index of changes in these elements will frequently—I would
even say invariably—be found in the intellectual and artistic trends of
a given period, i.e., in philosophy, literature, and the arts. I should like
to indicate certain principles that may help in the search for the causes
and functions of the various types of dictatorships.
In terms of class relationships, the function of dictatorship may be
related to three basic and recurring situations:
(1) Disenfranchised and insurgent social classes demand recognition
of their interests which the political power-holders refuse to grant.
There are two alternatives, depending upon the political maturity of
the ascending classes:
If they are politically mature—as the bourgeoisie in England in the
seventeenth or in France in the eighteenth century—caesarism will be
merely a transitory phenomenon (Cromwell and Robespierre). The
new classes, in power and commanding a majority, will for various
reasons demand a liberal political system.
But if they are not mature, or too weak, the caesaristic movement
will become a dictatorship as in the case of Pisistratus, Cola di Rienzo,
or Lenin.
(2) The second case is the attempt of a social class threatened with
decline and striving to preserve its status and power. Dictatorship may
then arise as an attempt to preserve the status quo. The most striking
examples are Sparta, to a lesser extent the half-hearted efforts of Na
poleon I, and probably the regimes of Franco and Peron.
(3) The third possibility is the attempt of what one might call
doomed classes to change radically the socio-economic situation, to
reverse it, and to install a political system that would restore them to
their old pre-eminence. This is the kernel of the German and Italian
Fascist movements.
These class relationships must be studied in the light of changing
economic systems. Totalitarianism, although not a new phenomenon,
is determined in its modern form by the features of an industrial so
ciety. Modem industrialism is politically ambivalent because it con
tains and intensifies two diametrically opposed trends in modern
society: the trend toward freedom and the trend toward repression.
Sociologists usually define this as the problem of “ moral lag,” holding
that the growing potentialities of modern technology outstrip the
progress of “ morality.” This may or may not be true, but it is not, in
my opinion, the decisive factor.
It is easy to say that technology is neutral politically and socially,
so that any desired result can be attained depending upon the persons
who use it and upon their aims. Technological optimists (like Georges
Sorel and Thorstein Veblen) hold that only the full development of
technological resources and their efficient utilization, (e.g., exclusion
of “ conspicuous consumption” ) can bring mankind to its highest per
fection. W e do not challenge this statement, but should like to ex
plore some of its implications.
Large-scale technology on the one hand may imply the total de
pendence of the industrial population upon a complex, integrated
mechanism, which can be operated only in a highly organized, strati
fied, and hierarchic system. This system must instill the virtues of
discipline, obedience and subordination—no matter who owns the
means of production. Thus, modern industrialism preaches the very
virtues which every authoritarian political system seeks to cultivate.
These virtues are repressive because they are opposed to man's self-
determination.
On the other hand, the very opposite virtues may also be strength
ened by technology: self-reliance, awareness of one's power and, most
particularly, the feeling of solidarity—that is, a spirit of co-operation as
opposed to authoritarianism.
VI. The Psychological Processes of Dictatorship

These two antagonistic trends of industrialism are, in my opinion,
essentia] for the understanding of modern dictatorship. The authori
tarian dement facilitates the rise of a dictatorship. But the co-operative
aspect forces the dictatorship to find some way of replacing solidarity
based on a rational interest (such as class interest) with some other
identification that does not undermine but rather strengthens the
dictatorship. Mussolini tried corporatism; Hitler, the doctrine of the
folk community; Stalin, that of the classless socialist state. But in vary
ing degrees all these identifications were a fake. That they nonetheless
“ succeeded” leads us to our final problem: the psychological processes
connected with dictatorship. The basic problem is anxiety and fear
and their function in political life.155
Freud has defined anxiety as an “ increase in tensions arising from
non-gratification of [the individual’s] need.” 56 Anxiety is thus always
present—at least potentially—as a situation or a state of indefiniteness.
Fear, in turn, is the recognition of a specific danger.
Therefore, external dangers, arising in specific situations and from
specific objects, are experienced in the light of internal anxiety, which
then becomes externalized and activated.
But this extemalization of anxiety through fear is by no means al
ways dangerous to the personality. One may distinguish three func
tions of fear:
Fear as a warning;
Fear as protection; and
Fear as destruction.
Thus, an external danger may well have a kind of monitoring function:
it may warn the individual that something terrible may happen to him.
And the reaction to the threat may then perform a protective or even
cathartic function. It may not only remove the concrete danger, but
allay the anxiety as well and thus make the individual more free. On
the other hand, fear may activate anxiety (particularly neurotic anxiety)
to the point of making it destructive. (Indeed there are psychoanalysts
who derive anxiety from destructive impulses.) Hence, in some indi
viduals, fear becoming operative or latent anxiety may either paralyze
the personality and make it incapable of defense (depressive anxiety) or
heighten its aggressive instincts (persecutory anxiety).
This bare (and rather thin) analysis of certain terms of individual
psychology may now be put to use in understanding the rise of totali
tarian movements and the operation of the totalitarian state.
As an illustration let me again take the Spartan state. Plutarch says,
“ . . . [T]he Spartans dealt with them [the Helots] very hardly: for it
was a common thing to force them to drink to excess, and to lead them
in that condition into their public halls, that the children might see
what a sight a drunken man is; they made them to dance low dances,
and sing ridiculous songs. . .” 57 Then they assassinated them. There is
little difference between the Spartan aristocracy’s behavior toward the
Helots and the Nazis’ treatment of the Jews. The ancients were well
aware of the fact that the passive element in the Spartan character was
fear, that this fear was systematically cultivated and that the Spartans’
famous courage in battle was nothing but fear of being stigmatized if
they failed in their military duty.58 The actual or feigned fear of the
Helots is the integrating principle of the Spartan ruling class, their
anxieties being activated into aggressiveness and destruction. The
totally repressive character of Sparta (as compared to Athens) rests
precisely in this fact.
In totalitarian movements (as contrasted with totalitarian states),
there appears a similar element. A distinction should be made between
the Nazi-Fascist movement and Lenin’s party prior to 1917. The Bol
shevik party at that time was not a totalitarian movement, nor may
Lenin (in contrast to post-1928 Stalin) be considered a totalitarian
leader. The Bolshevik party then did not manipulate fear; this is a later
development which began with the defeat of the revolutionary move
ments in Western Europe.
In contrast, the Nazi-Fascist movement activated the anxieties of the
middle classes and turned them into channels of destruction which
were made legitimate by means of the masses’ identification with a
leader, the hero. The nature of such identification has already been dis
cussed by Freud.59 This phenomenon appears in all caesaristic and
totalitarian movements, in various degrees, of course, and with varying
historical functions.
There can hardly be any doubt as to the essentially repressive impli
cation of overcoming fear through identification with a leader.. . .60
(2 5 4 ) Notes on the Theory of Dictatorship
Notes
1. Carl Schmitt, Die Diktatur (M unich, 1928) is the most significant exception,
but his analysis is not acceptable.
2. Lindsay Rogers, Crisis Government (New York, 1934).
3. For a general discussion see Clinton Rossiter, Constitutional Dictatorship
(Princeton, 1948).
4. T he best analysis is Ernst Meyer, Romischer Staat und Staatsgedanke (Zurich,
1948), particularly pp. 14 8 -15 0 .
5. However, an early exception occurred in the case of Q. Fabius Maximus who
was elected Dictator by a formal vote of the people after the defeat inflicted by
Hannibal upon C . Flaminius. Leon Homo, Roman Political Institutions from City
to State (New York, 1947), P* 10 1 •
6. T h e dictator had to resign his office prior to the expiration of the six-month
period if the office of the appointing Consul expired or if the purpose for which
he had been appointed was fulfilled.
7. These were the political uses. W e do not mention certain religious and
ceremonial occasions at which dictatorial honors might be conferred.
8. For details on the powers of the dictator prior to Sulla see Theodor M om m
sen, Romisches Staatsrecht (Leipzig, 1887), vol. II, part I, pp. 1 4 1 - 1 8 0 . M om m
sen’s is still the best analysis although his theory on the origin of the institution
(which he derived from the kingship) is no longer accepted. See Meyer, op. cit.,
pp. 37 ff. and Eugen Taubler, Der Romische Staat (Leipzig, 19 35), p. 13 .
9. An institution similar to the Roman dictatorship existed in the Greek political
systems, viz., the “ elective form of tyranny" (Aisumneteia). Aristotle, Politics
1285*; (Barker trans. D, C h . X I V , para. 6).
10 . Ibid., 1285* and b (D, C h . X IV , para. 6 -14 ).
11. Ibid., 128 5** ( C h . X V , p ara. 1 ) .
12 . W hich, however, need not necessarily be a dictatorial family, because the
power of the pater familias may well be founded in reason: “ rational authority."
13 . T . W . Adorno et al; The Authoritarian Personality (New York, 1950).
14 . Institut fur Sozialforschung, M ax Horkheimer et al., Studien liber Autoritat
und Familie (Paris, 1936).
1 5 . Guizot, La Democratic en France, (Leipzig, 1849), p. 2.
16 . On Agis IV and Cleomenes III see Plutarch, Lives (Dryden Translation);
also H . M ichell, Sparta (Cambridge, England, 1952), pp. 3 16 -3 2 9 ; M . Hadas,
“ T he Social Revolution in Third-century Sparta" in Classical Weekly, XXVI
(19 32), pp. 6 5 -7 2 ; E. Bux, “ Zwei sozialistische Novellen bei Plutarch," in Klio,
X IX (19 2 3 )' PP- 4 J3 ff*
17 . Plutarch, Lives, Cleomenes, M odem Library Edition, p. 972.
18 . Ibid., p .9 7 3 .
19. Plutarch, Lives, Solon, loc. cit., p. 97.
20. W erner Jaeger, Paideia, I, p. 14 0 ; Alfred Zimmem, The Greek Common
wealth (London, 1947, 5*h ed.), p. 1 4 1 ; W . Fowler, The City State of the Greeks
and Romans, (London and N ew York, 1895), P- J 54-
2 1 . Aristotle's Constitution of Athens, ed. and trans. by K. von Fritz and E .
Kapp (New York, 1950), chs. 14 , 16.
22. Rostovtzcff, A History of the Ancient World, (Oxford, 1928), I, p. 216 ;
G . Glotz, The Greek City and Its Institutions (New York, 1930 ), pp. 1 2 1 ff.
23. See Aristotle's Constitution . . . , op. cit., ch. 16.
Notes on the Theory of Dictatorship (2S$)
24. Zimmem, op. cit., p. 14 2.
25. Tacitus, Annals, III, 2.
26. Cicero, Ad Quintum, III, 4, 1 .
27. For details: E . Meyer, op. cit., esp. pp. 3 14 -3 2 9 for a discussion of the
problem and review of literature.
28. See J. Gage, “ De C6sar a Auguste," in Revue Historique, 1936 , pp. 27 ff;
and E . Hohl, “ Das Angebot des Diadems an Caesar,” in Klio, 19 4 1, pp. 92 ff.
29. Mathias Gelzer, “ Caesar,” in his V om romischen Staat, vol. I, (Leipzig,
1943), pp. 1 2 5 - 14 0 ; H . Strasburger, Caesars Eintritt in die Geschichte (Munich,
1938), pp. 772 ff.
30. Gelzer, “ Die romische Gesellschaft zur Zeit Ciceros” in V om romischen
Staat, vol. II, p. 22; Ronald Syme, The Roman Revolution (Oxford, 1939) pp. 1 2 -
1 3 ; Lily Ross Taylor, Party Politics in the Age of Caesar (Berkeley, 1949), p. 7.
For the meaning of the different terms see L . Ross Taylor, op. cit., pp. 7 - 1 4 .
3 1. See Homo, loc cit., p. 202.
32. Julius Kaerst, Studien zur theoretischen Begriindung der Monarchic im
Altertum (Munich and Leipzig, 1898), and his Geschichte des Hellenismus, 2d ed.,
vol. II (Leipzig and Berlin, 1926), pp. 29 6 -325. On Anthony in Egypt see Syme,
op. cit., p. 273.
33. For details see Homo, op. cit., pp. 206 ff.
34. Ibid., from the R es Gestae.
35. Ibid.
36. For details see Syme, op. cit., pp. 350 -36 8 ; and Taylor, op. cit., pp. 1 7 6 2 .
37. For details see esp. Meyer, op. cit., pp. 3 3 7 -3 4 3 ; Homo, op. cit., pp. 20 7 -
2 14 ; Syme, op. cit., pp. 336 ff.
38. Dig. I, 4; Inst. I, 2, 6.
39. I,i7»i.7-
40. For epigraphic documents regarding the accession of Vespasian, see Corpus
Inscriptionum Latinarum (Berlin, 186 3 seq.), V I, 930; and for the reign of Augustus
(oath to him), F . Cumont, “ Un Serment de Fidelity a L'Em pereur Auguste,” in
Revue Historique, 19 0 1, pp. 26 -4 5.
4 1. Meyer, op. cit., p. 347.
42. See K. Burdach and P. Piur, eds., Briefwechsel des Cola Di Rienzo (Berlin,
1 9 1 2 - 1 9 1 9 ) in five parts; K. Burdach, Rienzo und die Geistige W andlung Seiner
Zeit (Berlin, 19 13 ) ; Paul Piur, Cola di Rienzo (Vienna, 1 9 3 1) ; a popular history
(written with an eye to Hitler) is Herbert Vielstedt, Cola di Rienzo, die Geschichte
des Volkstribunen (Berlin, 1936); M ario Em ilio Cosenza, Francesco Petrarca and
the Revolution of Cola di Rienzo (Chicago, 19 13 ) ; Edward Gibbon, The Histon,’
of the Decline and Fall of the Roman Em pire (J. B . Bury, ed.) vol. V II, ch. L X X ;
Ferdinand Gregorovius, History of the C ity of Rome in the Middle Ages (London,
1898), vol. V I, part I, pp. 229 -234 . An important analysis is M ax Horkheimer,
“ Egoismus und Freiheitsbewegung,” in Z eitschrift fur Sozialforschung, vol. V
( i 93 6)> PP- 1 6 1 - 2 3 1 .
4 3. Cited in Cosenza, op. cit., pp. 16 -4 4 .
44. This is particularly the view of Burdach and Piur; see Piur, op. cit., pp. 1 4 -
20.
45. Piur, op. cit., p. 53.
46. Lewis of Bavaria, instructed by Marsilius of Padua, had used this device in
13 2 8 in a ceremony probably witnessed by the youthful Cola. Vielstadt, op. cit.,
pp. 5 5 -6 1, and Piur, pp. 86 ff.
48. I do not discuss ancient Egypt or any other so-called Oriental despotisms,
as m y studies in these are not yet completed.
49. W . L . Westermann, “ Athenaeum and the Slaves of Athens,” in Athenian
Studies presented to W . S. Ferguson (London, 1940); A. H . M . Jones, “ The
Economic Basis of Athenian Democracy,” in Past and Present, N o. 1 (February,
1 9 5 2 ) ,pp. 1 3 - 3 1 .
30. Plutarch, Lvcurgus, Joe. cit., p. 7 1 .
5 1. IV , 80.
52. Zimmem, loc. cit, p. 180.
33. F . \V . W albank, The Decline of the Roman Em pire in the W est (New
York, 19 53), P- 491 F . Oertel, Cambridge Ancient History, vol. X (1934 ), V ol. X I I
(1939).
54. T he size of a state may also be a problem. Plato, Montesquieu, Rousseau,
Jefferson, and others, have suggested that large size promotes dictatorship; and
Jacob Burckhardt and Oswald Spengler have predicted the re-emergence of caesar-
istic dictatorships due to the growing size of the states. T o my knowledge, however,
F . Ratzel and his school represent the only attempt to put this type of analysis on
a scientific basis. But the evidence is as yet unconvincing. See Ratzel, Politische
Geographie 3rd ed. (Munich, 1 9 13 ) , Part 5, ch. 1 3 ; Otto M aull, Politische Geogra
phic (Berlin, 1925), p. 663.
55. T he difficulties in treating this problem are due not only to the fact that
I am a layman, but to the fact that the subject is highly controversial even in
psychoanalytic theory. For the following see “ Anxiety and Politics” (this volume)
and the notes to it.
56. The Problem of Anxiety, trans. by H . A. Bunker (New York, 1936 ), p. 76.
57. Lvcurgus, Joe. cit., p. 7 1 .
58. All the available evidence has been collected in an interesting article by
Proton II. Epps, “ Fear in Spartan Character,” Classical Philology', 19 3 3 .
59. Sigmund Freud, Group Psychology and the Analysis of the Ego, trans. S. J.
Strachey (New York, 1949).
60. A concluding paragraph is missing— editor.
[c h a p t e r 1 o]
<['[
ECONOMICS AND PO LITIC S IN THE
T W E N T IE T H CENTURY*
I n h i s b i o g r a p h y of General von Seeckt, General von Rabenau reports

that on December 20, 1918, there took place in Berlin a political con
ference of the former German General Staff concerning Germany’s
future. The then Major von Schleicher was the first who explained the
tasks of the future General Staff. Germany, Schleicher felt, would have
to be made strong again in three stages. First one would have to estab
lish a strong governmental power in the interior, then one would have
to create a healthy economy, and finally Germany’s external power
would have to be established on the basis of these two achievements.
Thereupon General von Seeckt rose to explain his own program. He
agreed with Schleicher that a strong government was necessary. But
he disputed that the economy should have precedence over the armed
forces. The first task was to create a strong armed force which alone
could make Germany a desirable ally. First army, then economy! This
episode discloses more than the fact that the German counter-revolu
tion began on the day of the revolution of 1918. It leads directly into
the problem of the relation of economics and politics. Both Schleicher
and Seeckt agreed that a political element, namely, the establishment
of a strong government (i.e., the domestic political element) should
have precedence over the economy. They clashed when it was a ques
tion of the significance of foreign policy.
If I place this episode at the beginning of my argument I do so in
order to illustrate how far-reaching real consequences can flow from
apparently merely theoretical differences—such as those about the
relation of economics and politics. Our conceptions of this relation are
* T r a n s la te d fr o m th e G e r m a n by P e te r G a y , C o lu m b ia U n iv e r s i t y . S lig h tly
a b r id g e d v e rs io n o f a s p e e c h g iv e n a t t h e Hochschule f u r Politik in B e r lin , 1 9 5 1 .
(*57)
(258) Economics and Politics in the Twentieth Century
dominated by stereotypes. The most influential and dangerous stereo
type is the one that concerns the alleged theory of the classical liberal
state. To be sure, the formulation of the liberal theory, in Adam Smith
and Spencer for example, seems to corroborate these errors. If one reads
Adam Smith—and particularly his Theory of Moral Sentiments or his
Glasgow Lectures on Justice, Police, Revenue, and Arms—one obtains
something like the following picture of the relation of politics to econo
mics: society reproduces itself through the congruence of individual
and national interest; this accord is made possible essentially by the
elimination of politics; the state intervenes only in order to maintain
basic relationships, i.e., to see to it that competitors fight with fair
weapons, so that the inequality of competitors does not become too
great and that the formation of monopolies is thereby prevented; where
this is not possible, there—and there alone—should the state itself
assume economic functions. Adam Smith had no political theory.
However, this omission is extraordinarily important. Adam Smith never
expressed an opinion concerning the problem of forms of state, of
political systems, and the relations between social system and form of
government. Monarchy, aristocracy, democracy: they all fit into his
system provided that they give free play to free competition. However,
it can hardly be doubted that Adam Smith’s political position was that
of Locke. This is where the real theory of constitutional or liberal
democracy is to be found.
The textbooks of the history of political theory customarily make a
fundamental distinction between the liberal Locke and the absolutist
Hobbes. Locke, it is said, places the freedom of man in the center of
his system; since he does so, he limits the functions of the state to a
minimum: the state may interfere with the freedom of the citizen only
under quite definite, rationally definable conditions. Hobbes on the
other hand, it is said, with his pessimistic philosophy of man does not
quite trust the individual. Therefore he permits the state everything
with a few trifling exceptions. Locke thus becomes the theorist of the
negative, Hobbes the theorist of the positive state, Locke the advocate
of the liberal and Hobbes the advocate of the absolutist state.
Now there is no doubt whatever that Locke’s theory was the pre
vailing ideology of England until, let us say, about the rise of the British
Labour Party. However, in the course of two centuries this ‘‘night-
watchman state” —to use Lassalle’s well-known and very dangerous ex
Economics and Politics in the Twentieth Century (259)
pression—proved itself capable of preserving the internal security of
England, of dealing with the Chartists and the labor movement, and
of establishing an immense colonial empire. Surely a strange theory
for a so-called negative state which succceeds in maintaining an im
perialist policy! Obviously something must be wrong with the custom
ary interpretation of Locke's theory. Indeed, if we look at this theory
more closely, its negative character disappears, and its political element
appears in a much clearer light. One could say that Locke places the
political element into the foreground and that with him the juristic
or constitutionalist (rechtsstaatliche) element has far less importance
than it is generally accorded. That is shown clearly when one examines
his theory of the separation of powers. To be sure, he distinguishes
three powers: the legislative, the executive, and the federative. But of
these only the legislative power is exactly the same thing in Locke that
we understand by it today: namely the making of general laws. The
other two have a very different meaning. The executive power includes
not only the internal administration, but also justice, and the federative
power means the conduct of foreign policy. But why does Locke sep
arate the conduct of foreign policy from the executive, although it
normally belongs to the executive? Because, as he himself says clearly
and distinctly, foreign policy can be conducted neither according to
general laws nor according to preconceived opinions, but must neces
sarily be left to the wisdom of those in whose hands it is. In foreign
policy the political element prevails absolutely and without regard for
law (Recht). But even in domestic politics Locke is not quite as consti
tutionalist as is generally supposed. Beside the three powers already
mentioned, Locke still postulates the so-called “ prerogative power" and
defines it as follows: the power to act for the public welfare at dis
cretion without authorization by law and sometimes even against the
law. Thus the bearer of the prerogative power, the monarch, is en
trusted with quite extraordinary political power which is independent
of the law.
Certainly there still remains a difference between Locke and Hobbes.
But it is not a difference in fundamentals. Both start from philosophi
cal individualism, both believe in a law of nature which has as its con
tent the self-preservation of man, both believe that a state, i.e., organ
ized political power, is necessary to protect man. They differ in that
the pessimistic Hobbes conceives the political element broadly, and the
optimistic Locke conceives it more narrowly. Both are legitimate
theorists of bourgeois society; Hobbes perhaps even more than Locke,
particularly when war is considered as the normal and peace as the
exceptional situation.
W e are thus entitled to say that even in genuinely individualistic
liberal theories the political element is not only present but decisive.
The liberal state, supposedly condemned to play the role of the
night-watchman, was exactly as strong as it needed to be in order to
fulfill its domestic and foreign political tasks. Neither in the theory
nor in the practice of liberalism was there ever the slightest doubt that
the legal order which was supposed to eliminate the intervention of
the state was no obstacle to the carrying on of war, to the support of
internal security, or to the actual conduct of foreign policy. Economic
and political liberalism are not twins. Hobbes was economically liberal
and politically absolutist, Locke was economically mercantilist and
politically liberal. Economic liberalism can be wedded to every political
theory. Pareto's economic theory is certainly liberal; his politics is not
only absolutist but authoritarian.
At the same time, we must not forget that in the age of liberalism
the relations between politics and economics were very opaque. The
ideologies of Locke and Spencer dominated thinking so much, the
control of political power by those who held economic power was so
tight, that one could easily gain the impression that the state had with
drawn and reduced its functions to a minimum—with the final goal of
making itself disappear. In this situation developed the decisive critique
of liberalism, Marxism.
Marxism became the theory of the European labor movement. Let
us inquire, then, what role the Marxist labor movement has played
in the theory of the relation of economics and politics. In the English
Chartist movement which, to be sure, had almost nothing to do with
Marxism, the labor movement appeared as an independent political
power for the first time. It was a genuinely democratic movement
which demanded universal suffrage in the “ Charter” and strove for
thoroughgoing parliamentary reform—a genuine political movement
whose motivation for political action was, however, determined by
the class situation. At first it was a matter of a mass protest against
the consequences of the industrial revolution, above all against un
employment; then Chartism expressed the protest of the poor against
the reform of the Poor Law which had been converted into an instru
ment of capitalism under the influence of “ philosophical radicalism.”
The element of charity in the administration of the Poor Law
had been eliminated, the administration was rationalized and the
principle that poor relief must never be higher than the wages of the
lowest-paid worker was anchored in the law. Both of these social
protests played a role in the popular protest against the Reform Act of
1832.
Political democracy appeared to the English people as the instru
ment designed to bring social liberation, but the movement was de
cisively beaten. Why? There are a number of causes for this. First of
all, a uniform ideology was doubtless lacking. The masses did not
understand that the clock of history cannot be turned back, that in
dustrialization must be accepted as a fact and that political power must
be employed as the decisive instrument for the control of industrializa
tion. This lack of insight—understandable in the circumstances of that
day—promoted the spread of programs which recognized the situation
only partially: monetary theory, agrarian socialist ideas, settlement
projects were recommended as panaceas: their partisans attacked each
other more passionately than they fought against their opponents. A
further important element must be added to this ideological, and
therewith political, inadequacy: the appearance of the trade unions.
Around 1851, Ernest Jones, one of the two Marxists in the leadership
of the later Chartist movement, described the problem as follows: the
trade unions had broken the back of the Chartist movement; they had
championed the viewpoint that the economic situation of the worker
could be improved in the long run without political power. In this way,
the trade unions—unintentionally, as Jones admits—had proved to be
England's strongest anti-democratic institution.
It is thus possible to draw three inferences from the investigation of
the Chartist movement: it had had an idea of the significance of
the political element in relation to economics, but had not recog
nized that political power can be used consciously in the shaping of
the economy, and it had shown, finally, how dangerous pure interest
groups which concern themselves only with the improvement of the
economic situation, can be in politics.
The next stage is the French Revolution of 1848. It is so important
not only because workers’ representatives entered the government for
the first time, but because in the French Revolution of 1848 the Ger
man Revolution of 19 18 was, as it were, rehearsed. Two labor move
ments were in existence at that time: the reform party under Louis
Blanc and the revolutionary party under Auguste Blanqui. Both were
unpolitical. This assertion may surprise those who know Blanqui’s
theory. But Blanqui was perhaps even more unpolitical than Blanc,
whose reform party carried on, as it were, social democratic politics:
shortening of working time, social insurance, unemployment relief,
national workshops. His opponents let him alone; but while he drafted
his social reform bills they turned to the capture of political power.
They took over the army, created a reliable militia, controlled the ad
ministration of Paris, invaded the administration of finance. When
they had completed the consolidation of their power position in the
state, they threw Louis Blanc out. The abolition of the “ national work
shops” was simply the symbolic act which expressed the conquest of
political power. The result was the well-known revolt of the supporters
of Louis Blanc which was ruthlessly suppressed. The inadequacy of
mere social reformist ideas, of the hope to achieve political power by
social reform, is exemplified in Louis Blanc.
Blanqui’s revolutionary theory is equally anti-political. At first glance
it appears to require a maximum of politics. After all, he demands the
seizure of power in the state by small groups of conspirators. But here
politics appears to be squeezed into very short periods of time in which
the spontaneity of the oppressed makes possible the activity of such
small groups of conspirators. However, spontaneous mass action ap
pears only in very short transitory periods; for the longer and more im
portant periods Blanqui has no program. He refuses to agitate, to
organize, to educate. In short: day-to-day, laborious political activity
finds absolutely no place in Blanqui’s theory. For this reason I consider
Blanqui just as unpolitical as and perhaps even more unpolitical than
Louis Blanc.
Both positions were represented in Germany in 1918. Social Demo
cratic politics of 19 18 corresponds to the politics of Louis Blanc. If one
analyzes the edicts of the Council of People’s Representatives, one will
find that they were essentially concerned with social policy and social
reform. Social Democracy refused to employ the political power it
possessed for the strengthening of its power. On the other hand, the
confidence in spontaneity, the refusal to participate in the elections to
the National Assembly reveals the affinity of the Communists to
Blanqui. Certainly there are essential differences between 1918 and
1848, but the model is the same. This shows how little the Marxist
theory of the relation of economics to politics, to which Social Demo
crats as well as Communists appealed, was understood by them!
Marxist theory suffers from a misunderstanding: the confusion of
sociological analysis with the theory of political action. The Marxist
thesis of the class character of the state had been correctly understood
as a theory of society; it had been misunderstood as a theory of action.
In Marx's sociological theory politics appears as a function of econom
ics: the state is seen as a class state which serves the preservation of
the class structure; the classes in turn are based on the production
relations. The function of the state is thus decisively determined by the
economy. But does it follow that according to Marx the action of the
proletariat must be predominantly economic and not political? For
Marx himself the answer is beyond doubt: political and not economic
action decides the issue. It follows from the sociological analysis—the
state as class state—that the class state must be overthrown. How? Not
by the general strike, as the syndicalists held, but by political means,
not necessarily only by democratic instruments. The revolution as a
political means is for Marx necessary when it is a question of gaining
democracy or of defending it.
European Social Democracy drew no consequences from this. Its
politics was supported by the theory that the economic rise of the labor
movement must have as its necessary consequence its political rise, that
the economic element must always determine the political element.
This confusion was shown most clearly at the last party congress of
German Social Democracy before 1933, the Party Congress at Leipzig
in 19 31, when the question “ capitalism or socialism” was discussed, in
a situation in which the very existence of democracy was at stake. There
was, in the period from 19 18 to 1933, an abysmal gulf between the
social-reformist achievements and the political weakness of the labor
movement.
This gulf also exists in the theory and the politics of traditional
European liberalism. Pure liberalism (Urliberalismus) is just as much
an illusion as social reformist Social Democracy. W hat social reform
is to Social Democracy, education is to liberalism. Starting from an
optimistic analysis of the character of man, trusting to the perfectibility
of man, faith in education becomes an instrument for the seizure of
political power. Thus social reform and faith in education became the
grave diggers of democracy. The overemphasis on both awakened the
illusion that the long-run goal of raising the material and intellectual
level of the masses could change existing political conditions.
The third illusion is that of the power of law. Fundamentally, in the
theory of liberalism as in that of European Social Democracy, all politi
cal relations are dissolved into legal relations. W hat docs this mean?
Nothing else than that the freedom of man is transformed into se
curity'. All relations between state and citizen are to be made calculable;
concerning each of these relations one, perhaps two or three courts
are to adjudicate. Law (Gesctz) is defined as an invasion of freedom
and property, and because it is so defined, one must have guarantees
that the invasion will not take place arbitrarily.
The dissolution of politics into law is supposed to remove risk from
politics. One wants to achieve everything, but risk nothing. The naive
confidence in social reform, education and constitutionality (Rechts-
staatliehkeit) can endanger democracy itself. They all express the un
political character of the masses, they deny or do not want to know
that the struggle for political power—i.e., the struggle for the control
of the coercive organizations, for police, justice, army, bureaucracy, and
foreign policy—is the agent of historical progress. W hile democracy
thus misconceived the relation of economics and politics, its enemies
right and left clearly recognized the precedence of politics over eco
nomics: Fascism and Bolshevism are in agreement that politics has
precedence. For Hitler this was clear: his so-called indifference to
economics shows clearly and distinctly that for him politics was su
preme. The Bolsheviks were concerned with a rational employment of
the economy for political purposes, for the maintenance of political
power.
The significance of political power was always clear to reactionaries,
even when they appropriated liberal political and economic theory;
indeed the theory of the nonintervention of the state was accepted by
reactionaries only when the state began to become democratic. If one
examines the theory and the politics of the Prussian conservatives be
fore 1918, one will find no trace of the liberal theory of the state which
they pressed into service after 1918. Then liberal economic theory
was used for weakening the political power of democracy. After all,
even according to the radical liberal theory economics can by no means
exist without politics. At the very least one needs tariffs, revenues,
armies, and police. But in the period of monopolistic concentration one
needs more than that. The economic system becomes rigid and thus
more sensitive to crises. A generous policy of subsidies becomes neces
sary, but a subsidy policy which will not, at the same time, strengthen
the democratic movement.
Here are the germs of Fascism. Since the economy needs the state,
it wants a state that will not touch economic power relations. Thus one
may say that Fascism emerged from the need of the holders of eco
nomic power for a strong state which, however, must not be subjected
to the control of the people. Fascism did not originate as a reaction to
the communist danger, but for the purpose of suppressing the demo
cratic movement which wanted to give rational and democratic shape
to the economy.
The development of Bolshevism was different and yet similar. In
Bolshevism we find, first of all, the reaction to the theory and practice
of the Second International and naturally a reaction to conditions in
Czarist Russia, i.e., an agrarian state with a small but highly concen
trated industrial sector. What, then, does the October Revolution
mean? In the October Revolution the victory of the political element
is clear. Power had been achieved, but the great question arose what
to do with that power.
If one looks at the literature on the politics of Bolshevism one finds
that there were three theories that sought to define the significance of
the revolution. First, that of the Mensheviks which, in accord with
traditional Marxist interpretation, took the view that Russia would
first have to go through the stage of capitalism, that the political form
corresponding to capitalism was the democratic republic, and that a
revolutionary socialist party would have to assume the role of an oppo
sition party.
Secondly, as early as 1905 Trotsky had criticized this position out of
his experiences with revolution. Already at that time he had posed the
question if there was any sense in sending workers to the barricades in
order to fight for the victory of capitalism. From this formulation of
the question there grew his theory of the permanent revolution: the
revolution must become European in scope, and it must rely solely
and exclusively on the working class. But since the Russian working
class was weak and small, a European revolution would have to be
kindled in support of the Russian Revolution.
Lenin did not identify himself with either of these views, but tried
both and suffered defeat with both. The spread of the European revolu
tion failed as did the attempt to create the mass basis of the revolu
tionary government through an alliance with the peasants. Thus Bol
shevism was confronted with an extraordinarily difficult question: what
is one to do with monopolized political power [if the socio-historical
base on which it was to rest has not materialized]? From this situation
grew the totalitarian dictatorship of Bolshevism. In the Five Year
Plans totalitarian politics sought to create for itself the economic ele
ment which alone could make the maintenance of totalitarian politics
possible: thus may the significance of Bolshevik politics after 1924 or
after 1928 be defined. The totalitarian politics of Bolshevism created
for itself a new economic power svstem.
But in Bolshevism, as well as in Fascism, structural changes occurred
later. For National Socialism there arose the necessity of somehow
giving an economic base to political power which, at first, had no eco
nomic underpinning. Out of this pressure arose structures like the
German Labor Front. How far this tendency would have gone in Ger
many is a difficult question; to answer it is an important problem for
research. The war prevented the continued development of this tend
ency. In Bolshevism, on the other hand, there may very well exist the
possibility that the holders of economic power themselves exercise
political power as a class. It is hard to say precisely how far this process
has already gone.
The domination of politics over economics is clear. But difficult
questions arise here: if politics is thus predominant, can the domina
tion of totalitarian politics be overthrown? Or are there inherent laws
in accord with which total politics must collapse? M v answer to this is,
N o!
First of all we must start from the fact that in the 20th century those
who hold political power know very well what means of power are avail
able to them. As instruments they have, first, physical coercion. But
the physical coercion of the 20th century is distinguished from the
physical coercion of earlier periods. Then, physical coercion was essen
tially retributive justice (Straf/ustiz), today it is above all irrational
terror. Between a penal justice, no matter how brutal, and terror there
exists not only a quantitative but also a qualitative difference. This

new qualitative element of the terror already makes political power in
itself enormously strong. Secondly, political power has at its command
all instruments of economic power: the means of production, con
sumer goods, wages and prices. Thirdly, it has at its command all psy
chological means of coercion, i.e., propaganda and education. But the
scope of political power, too, has become wider. In the 19th and early
20th centuries working and leisure time were sharply separated. This
separation no longer exists; leisure time appears merely as a function
of working time, and working time, in turn, as a function of political
power. . . . Culture is transformed into a commodity: propaganda
creates the condition of spiritual exhaustion which makes critical think
ing impossible, not through its completely insignificant content, but
through endless repetition.
It seems to be impossible to overthrow the holder of political
power who is in unlimited possession of all these instruments and
techniques. Indeed, there exists in modern history no example of a
successful revolution against a halfway strong state. The French Revo
lution-all recent historians are in agreement on this—did not, after all,
break out because the absolute monarch was absolute, but precisely
because the absolute monarch was not absolute, because he was un
able to make his political power prevail against the feudal social forces.
After the Franco-Prussian war Engels had already voiced the doubt
whether a civil war could succeed at all. Every strong state can deal with
its opposition; totalitarian politics have no difficulty whatever with this.
Machiavelli’s theory now becomes really true for the first time. None of
the totalitarian states, neither Germany nor Italy, was ruined by do
mestic politics; both dealt with their internal opposition. The study of
the documents of National Socialism shows plainly that there was no
domestic political problem that National Socialism had been unable
to master. In the modern period of conscious precedence of politics,
revolution can be successful only within the ruling class and only with
the help of the political machinery itself.
But how about the immanent tendencies which could lead to the
overthrow of totalitarian politics? On these immanent tendencies
there are the Marxist collapse theory, the theory of cycles, among them
especially that of the decadence of states, and certain generalizations
concerning the relation of domestic to foreign policy. Even if the theory
of the immanent collapse were correct as an economic theory, no un
ambiguous political consequences would flow from it. If it were correct
that the process of capitalist production must necessarily lead to the
collapse of this production, this still would not mean that a political
collapse would have to follow on the economic collapse. It could very
well be that the ruling class would draw the inference from the threat
ening collapse of the capitalist system that it must use political means
to prevent this collapse from becoming politically effective. As to the
cyclical theories concerning the decadence of states, they are, in my
opinion, metaphysical and correspond to no historical truth whatever.
I now come to the generalizations concerning the relation of domes
tic to foreign policy: formulated popularly, this theory holds that every
totalitarian politics must expand in order to stay alive. This thesis is
doubtful. There is no “ must” —sometimes it will be so, sometimes it
will not be so. Here remains a great task for research: to investigate if,
in fact, the inner dynamics of a system of totalitarian politics, like that
in Germany, must necessarily drive the dictator into expansion, or if
accidents are not decisive here.
The primacy of politics over economics was always a fact, which was
at times glossed over, at times openly recognized. In the structure of
totalitarian states the circumstances are so clear that one need not waste
many words. In the structure of democratic states the circumstances
are frequently concealed through ignorance, but even in the period of
unlimited Manchestcrdom politics had the hegemony. The difference
between democracy and dictatorship does not lie in the relation of
economics to politics. Democracy is not to be defined as a constitution
alist state, but as a state which involves the subordination of social
power to political power, and which makes this political power respon
sible.
The real difference between democracy and dictatorship consists
first in the boundlessness of political power of dictatorship in contrast
with the voluntary restrictions which democracy imposes upon itself—
that and nothing else is the meaning of the rule of the rights of man;
secondly, in the responsibility of the holders of political power to the
people, for democracy is not direct popular rule, but responsible parlia
mentary or governmental rule in contrast with the theory and practice
of the irresponsibility of a political power that rests upon the leader
ship principle. Thirdly, in a democracy political power is to be ration
ally employed, not only negatively to keep down private social power,
but positively to shape a decent existence. This is often ignored. Thus
it is claimed that democracy is nothing more than a system of liberties
(Freiheitsrechte) which rest on natural law. Today such theories are
almost uniformly anti-democratic theories.
The great task of the present lies not in the legal formulation, but
in the rational development of political power, which must be com
pletely responsible and which may not be exercised arbitrarily.
[c h a p t e r l l ]
<[ c
A N X IE TY AND P O LIT IC S *
O n Jan u ary 6, 1941, President Franklin D. Roosevelt proclaimed the

Four Freedoms: Freedom of Speech, Freedom of Religion, Freedom
from Want, and Freedom from Fear. But with the end of the second
World W ar anxiety has not disappeared from the world. On the con
trary, it has become even greater and more frightful; it has begun to
paralyze nations and to make men incapable of free decisions.1
Anxiety is, or ought to be, a central problem of the sciences. Anxiety
impairs the freedom of decision, indeed it may make such freedom im
possible-only a fearless man can decide freely. The discussion of the
problem of anxiety should be open to all the disciplines, not reserved
to any one of them, for the great concern of science is the analysis and
application of the concept of human freedom.
M y task today is to discuss the problem of anxiety in politics, a task
which is confronted with many obstacles. In contrast to the traditional
disciplines, the science of politics has no method of its own—it has, in
the last analysis, only a focus, namely the dialectical relation between
domination and freedom. In other words the science of politics revolves
solely around a problem and uses all kinds of methods to attack this
problem. However, with this approach the political scientist runs the
danger of diletantism, a danger which he can avoid only by being con
scious of his limitations and by giving a hearing to authorities from
other disciplines. Thus his contribution will often consist merely in a
synthesis of the results of research or perhaps in a felicitous hypothesis.
But a second, even greater obstacle consists in the inadequate state
of the discussion of anxiety in psychological literature. If I rely ex-
* Originally delivered as a lecture before the Free University of Berlin and
published in the Series “ Recht und Staat,” Tubingen, 1954 . Translated by Pro
fessor Peter Gay.
(270)
Anxiety and Politics (27 1)
tensively on Freud in what follows I do so not because I accept his
therapeutic method—of that I understand nothing—but because his
theoretical insights seem to me convincing and not refuted up to now.
M y lecture will have to take a position on many questions which
have not yet been clarified, and it is my hope that it will move other and
more competent scholars to analyze the problems I have raised.
I. Alienation
1. In his Letters “ Ueber die aesthetische Erziehung des Menschen,"
Schiller has magnificently described man in modern society.2 “ Man
portrays himself/' he writes, “and what a form is presented in the
drama of the modern age? Barrenness here, license there; the two ex
tremes of human decay, and both united in a single period."3 As Rous
seau did before him, Schiller indicts civilization itself: “ It was culture
itself which inflicted this wound on modern humanity."4 And this
wound was inflicted on man by the division of labor: “ Gratification is
separated from labor, means from ends, effort from reward. Eternally
fettered only to a single little fragment of the whole, man fashions
himself only as a fragment. . . ."5 His indictment of modern society
reaches its climax in the characterization of love: “ So jealous is the
state for the sole possession of its servants that it would sooner agree
(and who could blame it?) to share them with a Venus Cytherea than
with a Venus Urania."6 Schiller has, of course, taken the two forms of
the goddess of love from Plato’s Symposium and thus identifies Venus
Cytherea with venal but Urania with genuine love.
W hat Schiller describes so impressively is what Hegel and Marx
were to characterize as alienation.7 Schiller contrasts the “ polypus
nature" of the Greek states, “ where each individual enjoyed an inde
pendent existence and, if necessary, could become a whole,"8 with
modern society which is one of hierarchical division of labor.9 Modern
society produces a fragmentation not only of social functions but of
man himself who, as it were, keeps his different faculties in different
pigeonholes—love, labor, leisure, culture—that are somehow held to
gether by an externally operating mechanism that is neither compre
hended nor comprehensible. One may—as I do—consider Schiller’s
(as also Hegel’s) analysis of the Greek state as strongly unrealistic and
(2J2) Anxiety 2nd Politics
one may, perhaps, even see certain dangers in the glorification of
Greece;10 nevertheless his analysis of modern man, pointing far beyond
his age, remains valid and it is perhaps only today that we have become
fully conscious of how true Schiller’s Letters are.
2. In his Thcologischc Jugendschriften11 Hegel developed for the
first time the concept of alienation. In his draft, entitled “ Love,” 12 he
defined love as the “ whole,” as “ a feeling, but not a single feeling.” “ In
it, life finds itself, as a duplication of its self, and as its unity.” But this
love is frequently shattered by the resistance of the outside world, the
social world of property, a world indeed which man has created
through his own labor and knowledge but which has become an alien,
a dead world through property. Man is alienated from himself. Since
we are here not concerned with the Hegelian concept of alienation, we
may pass over the development of his concept.13
It is equally unnecessary for us here to develop fully Marx’s concept
of alienation.14 For Marx it is the commodity that determines human
activity, that is, the objects which are supposed to serve man become
the tyrant of man. For according to Marx, who thus fully agrees with
Schiller, Hegel, and Feuerbach, man is a uinversal being. Man is free
if he “ recognizes himself in a world he has himself made.” 13 But that
does not happen. Since “ alienating labor (1) alienates man from nature,
(2) alienates him from himself, his own active function, his life’s ac
tivity, it alienates man from his species.” 16 The separation of labor from
the object is thus for him a threefold one: man is alienated from ex
ternal nature, from himself, and from his fellow-men. The relations of
men to one another are reified: personal relations appear as objective
relations between things (commodities).
Man, (not only the worker, since the process of alienation affects
society as a whole)17 is thus for Marx as for Schiller, Feuerbach and
Hegel, a mutilated man.
3. But these theories of alienation are not adequate. W hile the
principles developed by Hegel and Marx must not be given up, these
theories need supplementation and deepening. Their inadequacy con
sists in this, that they oppose universal or nearly universal man (of
ancient Greece in Schiller and Hegel) to the mutilated man of the
modern world.18 But there is no historical form of society in which men
have ever existed as universal beings; for slavery is not compatible with
universality. M y meaning may, perhaps, become clearer if I distinguish
Anxiety and Politics (273)
three strata of alienation: The stratum of psychology; that of society;
and that of politics.
W e can get at the problem of alienation, and thus of anxiety in
politics, only if we start with a clean separation of the three strata and
concepts, in order later to bring them together again. Neither aliena
tion nor anxiety is to be found only in modern society' and only in
modern man, although the different structures of society and of the
state modify the forms of expression which alienation and anxiety take.
The modifications are hard to determine, and I shall not attempt here
to undertake a systematic analysis. But I shall try to point up the prob
lem and to make the theory somewhat more concrete by means of
(more or less arbitrary) examples.
II. Alienation and Anxiety

i. Freud's thesis in his Civilization and its Discontents is this: “ The
goal towards which the pleasure-principle impels us—of becoming
happy—is not attainable;"19 because for Freud suffering springs from
three sources: external nature, which we can never dominate com
pletely, the susceptibility to illness and the mortality of the body, and
social institutions.20
However, the statement that society prevents happiness, and conse
quently that every socio-political institution is repressive, does not lead
to hostility toward civilization. For the limitation, which is imposed
upon the libidinal as well as the destructive instincts, creates conflicts,
inescapable conflicts, which are the very motors of progress in history.
But conflicts deepen with the progress of civilization, for Freud states
that increasing technical progress, which in itself ought to make pos
sible a greater measure of instinct gratification, fails to do so. There
arises here a psychological lag that grows ever wider—a formulation
that I should like to borrow from the “ cultural lag" of American
sociology.
Thus every society is built upon the renunciation of instinctual
gratifications.21 Freud finds that it is “ not easy to understand how it
can become possible to withhold satisfaction from an instinct. Nor is it
by any means without risk to do so; if the deprivation is not made gpod
economically, one can be certain of producing serious disorders."22
To be sure, according to Freud it is conceivable “ that a civilized
(274) Anxiety and Politics
community could consist of pairs of individuals (who love each other)
libidinally satisfied in each other, and linked to all the others by work
and common interests. If this were so, culture would not need to levy
energy from sexuality/’23 But the opposite is true and has always been
true. For at bottom Freud does not believe in this “ conceivable ideal.”
The differences between the different forms of society—which are de
cisive for us—do not play a decisive role for him.24 The renunciation of
instinctual gratification and the cultural tendency toward the limita
tion of love operate at all levels of society. It is these renunciations and
limitations which we characterize as psychological alienation of man,
or perhaps even better as alienation of the ego from the dynamics of
instinct.
2. Still another preparatory step is necessary: we have to establish
the logical connection between alienation and anxiety. This is ex
tremely difficult because the discussion of the problem of anxiety has
by no means reached the clarity which would make it possible for an
outsider—like myself—to adopt an unambiguous position toward the
various opinions 25 Nevertheless it seems to me that the differences in
the conception of the origin of anxiety do not have a decisive signifi
cance for my analysis, although they are, of course, highly relevant in
other contexts. Freud himself had originally derived anxiety from the
repression of libidinous impulses, and thus had seen it as an automatic
transformation of instinctual energy 26 This view he later modified.27
Others claim, on the other hand, that there is a single inborn faculty
for being afraid 28 Rank, in his famous work,29 derives anxiety from the
trauma of birth. And a number of analysts have tried, more or less
successfully, to combine the various theories in many ways.30
The following propositions seem to me more or less acceptable.
One must distinguish between true anxiety (Realangst) and neurotic
anxiety. The difference is of considerable consequence especially for
the understanding of the political importance of anxiety. The firs t-
true anxiety—thus appears as a reaction to concrete danger situations;31
the second—neurotic anxiety—is produced by the ego, in order to avoid
in advance even the remotest threat of danger. True anxiety is thus
produced through the threat of an external object; neurotic anxiety,
which may have a real basis,32 on the other hand is produced from
within, through the ego.
Since anxiety is produced by the ego, the seat of anxiety is in the ego,
not in the id—the structure of instincts. But from the analysis of the
problem of psychological alienation it follows necessarily that anxiety,
feelings of guilt, and the need for self-punishment are responses to in
ternal threats to basic instinctual demands33 so that anxiety exists as a
permanent condition. The external dangers which threaten a man meet
the inner anxiety34 and are thus frequently experienced as even more
dangerous than they really are. At the same time, these same external
dangers intensify the inner anxiety’. The painful tension which is
evoked by the combination of inner anxiety and external danger can
express itself in either of two forms:35 in depressive or in persecutory
anxietyf. The differentiation is important because it helps us to evaluate
the political function of anxiety more correctly.
In the history of the individual there are certain typical dangers
which produce anxiety. For the child the withdrawal of love is of
decisive importance. On this point there seems to be no doubt among
psychologists 36 From the numerous phobias we may learn a great deal
about the relation between anxiety' and the renunciation of instinctual
gratification. For inhibitions are a functional restraint of the ego; the
ego renounces many activities in order to avoid a conflict with the id
and the conscience. W e know that the phobic symptoms are a substi
tute for gratifications of the instincts that have been denied or are
unattainable. In other words, the ego creates anxiety' through re
pression.
3. If I have correctly reproduced the most important results of ana
lytical theory concerning the origin of anxiety', several important conse
quences for the analysis of political behavior seem to follow immedi
ately. Anxiety can play very different roles in the life of men; that is,
the activation of a state of anxiety' through a danger can have a bene
ficial as well as destructive effect. W e may perhaps distinguish three
different consequences:
(a) Anxiety can play a warning role, a kind of mentor role, for man.
Affective anxiety may allow a presentiment of external dangers. Thus
anxiety also contains a protective function 37 For it permits man to
take precautions in order to ward off the danger.
(b) Anxiety can have a destructive effect, especially when the neurotic
element is strongly present; that is, it can make man incapable of
collecting himself either to escape the danger or to fight against it;
it can paralyze man and degenerate into a panicky anxiety.
(c) Finally, anxiety can have a cathartic effect;38 man can be strength
(2 j6 ) Anxiety and Politics
en ed in w ard ly w hen h e has su ccessfu lly avoid ed a d an ger or w h en
he has p revailed again st it. O n e m a y perhaps even say (alth o u gh I
ca n n o t prove th is) th at th e m an w h o has co n qu ered an x ie ty in
co in in g to term s w ith a d an ger, m ay b e m ore capab le o f m akin g
d ecision s in freedom th an th e on e w h o n ever h ad to seriously
w restle w ith a dan ger. T h is m ay be an im p o rta n t q u alificatio n o f
th e p ro p o sitio n th a t a n x ie ty can m ake free decision im possib le.
III. Anxiety and Identification

Our analysis of the relation of alienation to anxiety does not yet
permit us to understand the political significance of these phenomena,
because it is still in the realm of individual psychology.39 How does it
happen that masses sell their souls to leaders and follow them blindly?
On what does the power of attraction of leaders over masses rest? W hat
are the historical situations in which this identification of leader and
masses is successful, and what view of history do the men have who
accept leaders?
1. Thus the question concerning the essence of the identification of
masses and a leader stands in the center of group-psychological analysis.
Without it the problem of the integration or collectivization of the
individual in a mass cannot be understood. I assume that the history of
the theories of group psychology is familiar.40 The extraordinary diffi
culty in the comprehension of group-psychological phenomena lies first
of all in our own prejudices; for the experiences of the last decades have
instilled in us all more or less strong prejudices against the masses, and
we associate with “ masses” the epithet “ mob,” a group of men who are
capable of every atrocity. In fact the science of group psychology began
with this aristocratic prejudice in the work of the Italian Scipio Sig-
hele,41 and Le Bon’s famous book42 is completely in this tradition. His
theses are familiar. Man in the mass descends; he is, as it were, hypno
tized by the leader (operateur) and in this condition is capable of com
mitting acts which he would never commit as an individual. As the
slave of unconscious—i.e., for Le Bon, regressive—sentiments, man in
the mass is degraded into a barbarian: “ Isolated, he may be a cultivated
individual; in a crowd, he is a barbarian—that is, a creature acting by
instinct. He possesses the spontaneity, the violence, the ferocity, and
also the enthusiasm and heroism of primitive beings.” 43 Critics of Le
Bon, among them Freud,44 have pointed out that his theory, which
rests on Sighele and Tarde, is inadequate in two aspects: the answer
to the question, W hat holds the masses together? is inadequate, for the
existence of a “ racial soul” 45 is unproved. In addition, in Le Bon the
decisive problem—the role of the leader-hypnotist—remains unclari
fied.46 As is frequently true in social-psychological studies, the descrip
tions of psychological states are adequate, the theoretical analyses, the
answers to “ W hy?,” are inadequate.47
2. From the outset, Freud sees the problem in the way in which we
have put it, namely, as that of the identification of masses with a
leader—an identification which becomes of decisive significance par
ticularly in an anxiety situation. And he sees in the libido the cement
which holds leader and masses together, whereby, as is known, the
concept of libido is to be taken in a very broad sense, to include the
instinctual activities which “ in relations between the sexes . . . force
their way toward sexual union,” as well as those which “ in other cir
cumstances . . . are diverted from this aim or are prevented from reach
ing it, though always preserving enough of their original nature to
keep their identity recognizable (as in such features as the longings
for proximity, and self-sacrifice.)” 48
The cement which holds the mass together and ties them to the
leader is thus a sum of instincts that are inhibited in their aims.49 In
this manner, I believe, the logical connection between alienation and
mass behavior has been established.
Since the identification of masses with the leader is an alienation of
the individual member, identification always constitutes a regression,
and a twofold one. On the one hand, the history of man is the history
of his emergence from the primal horde and of his progressive indi
vidualization; thus the identification with a leader in a mass is a kind
of historical regression.60 This identification is also a “ substitute for a
libidinal object tie,” 51 thus a psychological regression, a damaging of
the ego, perhaps even the loss of the ego.
3. But this judgment is valid only for the libido-charged, i.e., affec
tive, identification of an individual in a mass with a leader; and not as
a matter of course (and perhaps not at all) for that of lovers and of
small groups. Non-affective identification too, cannot be simply con
sidered as regressive. For identification with organizations (church,
army) is not always libidinally charged. MacDougall’s emphasis on the
significance of organization must therefore be taken seriously.
It is thus necessary to make distinctions. There are non-affective iden
tifications, in which coercion or common material interests play an
essential role, either in bureaucratic-hierarchic, or in co-operative form.
It seems to me to be incorrect, above all for recent history, to see in
the identification of the soldier with the army, i.e., in the loyalty to an
organization, an actual identification of the soldier with the com
mander-in-chief. Surely there are examples of this: Alexander, Han
nibal, Caesar, Wallenstein, Napoleon. But the commander-in-chief of
the 20th century is much more the technician of war than the leader
of men, and the libidinal tie of the soldier is, if I may coin the phrase,
essentially co-operative, namely, with the smallest group of comrades
with whom lie shares dangers.
Thus I would like to establish two fundamental types of identifica
tion: a libido-charged (affective) and a libido-free (non-affective); and
maintain generally (as it follows from MacDougall's psychology) that
the non-affective identification with an organization is less regressive
than the affective identification with a leader. Non-affective loyalty is
transferable;52 personal loyalty, on the other hand, is not. The former
always contains strong rationalist elements, elements of calculability
between organization and individual, and thus prevents the total ex
tinction of the ego.53
But I believe that one must also distinguish two types within affec
tive identification. One may call them co-operative and caesaristic. It
is conceivable (and it has probably happened in short periods in his
tory) that many equals identify themselves co-operatively with one
another in such a manner that their egos are merged in the collective
ego.54 But this co-operative form is rare, limited to short periods or in
any case operative only for small groups. The decisive affective identi
fication is that of masses with leaders. It is—as I have said—the most
regressive form, for it is built upon a nearly total ego-shrinkage. It is
the form which is of decisive significance for us. W e call it caesaristic
identification.55
IV. Caesaristic identification and false concreteness:

The Conspiracy theory in History
Caesaristic identifications may play a role in history when the situa
tion of masses is objectively endangered, when the masses are incapable
of understanding the historical process, and when the anxiety activated
by the danger becomes neurotic persecutory (aggressive) anxiety
through manipulation.
From this follows, first of all, that not every situation dangerous to
masses must lead to a caesaristic movement; it follows, further, that not
every mass movement is based on anxiety, and thus not every mass
movement need be caesaristic.
Thus it is a question of determining the historical conditions in
which a regressive mass movement under a Caesar tries to win political
power.
1. However, before we describe these historical situations, I may
perhaps point to a clue which will frequently permit us an early diag
nosis of the regressive character of such a mass movement. This clue
is the view of history which the masses and the leaders employ. It may
be called the conspiracy theory of history, a theory of history charac
terized by a false concreteness. The connection between caesarism and
this view of history is quite evident. Just as the masses hope for their
deliverance from distress through absolute oneness with a person, so
they ascribe their distress to certain persons, who have brought this
distress into the world through a conspiracy. The historical process is
personified in this manner. Hatred, resentment, dread, created by great
upheavals, are concentrated on certain persons who are denounced as
devilish conspirators. Nothing would be more incorrect than to charac
terize the enemies as scapegoats (as often happens in the literature),
for they appear as genuine enemies whom one must extirpate and not
as substitutes whom one only needs to send into the wilderness. It is
a false concreteness and therefore an especially dangerous view of
history. Indeed, the danger consists in the fact that this view of history
is never completely false, but always contains a kernel of truth and,
indeed, must contain it, if it is to have a convincing effect. The truer
it is, one might say, the less regressive the movement; the falser, the
more regressive.
It is my thesis that wherever affective (i.e., caesaristic) leader-identi
fications occur in politics, masses and leader have this view of history:
that the distress which has befallen the masses has been brought about
exclusively by a conspiracy of certain persons or groups against the
people.
W ith this view of history true anxiety, which had been produced by
war, want, hunger, anarchy, is to be transformed into neurotic anxiety
and is to be overcome by means of identification with the leader-
demagogue through total ego-renunciation, to the advantage of the
leader and his clique, whose true interests do not necessarily have to
correspond to those of the masses.
Of course, I cannot provide conclusive proof, but I believe that by
pointing to certain historical events I can make clear the connection
between this view of history and caesarism.
2. An interesting affective identification of leader and masses is the
relation of Cola di Rienzo to the Roman people.56 I assume that his
story is familiar—the rise of the hack lawyer, son of a Roman innkeeper
and a washerwoman, to Tribune of the Roman people and dictator of
Rome, his expulsion and return with the aid of the Church, and his
assassination by the Colonna family in the year 1354. The view of
history of Cola and of the Roman people was quite simple: Rome has
been ruined by feudal lords; their destruction will permit Rome to rise
again to its ancient greatness. This is how Petrarca formulates it in his
famous letter of congratulation to Cola: “ These barons in whose de
fense you (the Romans) have so often shed your blood, whom you
have nourished with your own substance . . . these barons have judged
you unworthy of liberty. They have gathered the mangled remnants
of the state in the caverns and abominable retreats of bandits. . . .
They have been restrained neither by pity for their unhappy country,
nor by love for i t . . . . Do not suffer any of the rapacious wolves whom
you have driven from the fold to rush again into your midst. Even
now they are prowling restlessly around, endeavoring through fraud
and deceit . . . to regain an entrance to the city whence they were
violently expelled.” 57 It cannot be denied that the feudal lords, above
all the Colonna and Orsini, had pursued a criminal policy. Without
this element of truth Cola’s propaganda and policy would never have
been successful. But fundamentally this was a false concreteness—for
even if he had succeeded in liquidating the barons, what would have
been decisively improved in Rome? The historical facts—the residence
of the Papal Court in Avignon; the economic decay of Rome; the re
grouping of class relations through the rise of the bourgeois cavalerotti
—all that Cola could not change. It can hardly be doubted that anxiety,
even purely physical fear of the arbitrariness of the barons, drove the
people to Cola. Cola succeeded in strengthening this anxiety by ex-
tremely skillful propaganda and achieved victory. But the leader him
self must feel no anxiety or at least must not show it.58 He must stand
above the masses. But in this Cola was deficient. In all other matters
his relation corresponded exactly to that of the libido-charged identifi
cation leader-masses, and it is regrettable that time does not permit me
to describe and analyze his propaganda themes, his ceremonial, and
his ritual. It was Cola's fundamental mistake that he was not enough
of a Caesar. To be sure, he publicly humiliated the barons, but he did
not liquidate them—whether out of cowardice, decency, or tactical
considerations. But the masses of Rome expected that he would act in
accordance with their view of history. He did not do this. Thus he had
to fall.
I have mentioned Cola di Rienzo because it is a marginal case in
which it is doubtful whether we are dealing with a regressive or a
progressive movement, that is, a movement which really has the realiza
tion of the freedom of man as its goal.
3. The eight French religious wars of the 16th century furnish
excellent material for the illumination of the character of caesaristic
as well as organizational identifications. All three parties—Huguenots,
Catholics, and Politiques—were faced with grave problems: the dis
integration of the old society through silver inflation, loss of wealth
on the one hand, enrichment on the other, the beginnings of radical
changes in class relations and the dissolution of the absolute monarchy
after the death of Francis I. It is against this background that the
religious wars must be understood. Their course is doubtless familiar to
you.
Catholics and Protestants alike saw the problem of France only as a
religious problem, and therefore ascribed the distress of France ex
clusively to their religious opponents, conjectured (partly justifiably)
that these opponents represented a great and sinister conspiracy, de
veloped or employed theories of caesaristic identification, and consist
ently proceeded to extirpate the opponent wherever opportunity
offered.
The Huguenot pamphleteer Francois Hotman in his Tiger59 saw in
the Cardinal Guise “ a detestable monster," whose aim it was to ruin
France, to assassinate the King, and to conspire with the aid of the
women near the King and the High Constable of France against “ the
crown of France, the goods of widows and orphans, the blood of the
(282) A n x ie t y a n d P o litic s
poor and innocent/' Calvin's theory of the secular redeemer sent by

God to overthrow tyrants,60—in the 17th century the basis of Crom
well’s leadership—became the Protestant theory of Caesarism.61 The
Catholics—with a longer tradition of tyrannicide—developed a pseudo-
democratic theory of identification, above all in the writings of the
Leaguist preachers and Jesuits.62 In these inflammatory pamphlets
whose demagogy even surpasses that of the Huguenots, the theory of
democracy is fitted out with theocratic traits, the masses of the people
are integrated through the social contract, in order to be identified
with Henry of Guise with the aid of the theocratic element. Whoever
takes the trouble to study the eighth religious war (the W ar of the 3
Ilcnrys) and the Parisian uprising, will find there all the elements
which I consider decisive: appeal to anxiety, personification of evils,
first with Henry III, then with Henry of Navarre, identification of the
masses with Henry of Guise.
Both positions, the Catholic and the Huguenot, are similarly re
gressive, while that of the Politiques, which Henry IV was later to
convert into action, is incomparably more progressive. Indeed, the
great merit of the chief representative of the party of the Politiques,
Jean Bodin, consists in this: he saw the economic problems of France
clearly;63 he understood the false concreteness of the view of history of
both parties. If he championed absolute monarchy—that is, the identi
fication of the people with the monarch—he did so because the mon
arch was to place himself above the religions that were fighting each
other64 and to ally himself with the households65 of the third estate in
order to save France. Despite the absolute submission to the prince
which is demanded of the people, this identification contains the two
rational elements which I mentioned before: loyalty becomes trans
ferable, i.e., the office is separated from the officeholder; and the re
lation between citizen and state becomes rational. Thus Bodin has a
certain justification in calling his theory a theory of the constitutional
state (droit gouverncment)66 despite his absolutism. I believe that the
French religious wars of the 16th century’ make my thesis a little
clearer: that the non-affective identification with an institution (state)
is less regressive than identification with a leader.
4. Naturally I cannot here discuss all similar situations. The religious
struggles of the 16th and 17th centuries are full of such historical con
structions.
One need only read, for example, the terrible Calvinist fanatic
John Knox in his famous First Blast of the Trumpet against the
Monstrous Regiment of Women and we will find there: “ W e se our
countrie set furthe for a pray to foreine nations, we heare the blood
of our brethren, the membres of Christ Iesus most cruelly to be shed,
and the monstruous empire of a cruell woman . . . we knowe to be the
onlie occasion of all these miseries.” 07 The rule of the Catholic Cath
erine de Medici, of Marie of Lorraine (the predecessor of Mary Stuart)
and of Mary Tudor appears here not only as a violation of divine com
mandment (because God has subjected women to men) but as a genu
ine conspiracy against the true religion. Unfortunately John Knox had
the ill luck of seeing Protestantism restored in England by a woman
and he apologized to Elizabeth in a Second Blast08 for his first attack.
5. Instead of continuing with this survey, it may perhaps be more
useful to discuss five fundamental models of conspiracy theories, all of
which show this sequence: intensification of anxiety through manipula
tion, identification, false concreteness. They are
(a) the Jesuit conspiracy

(b) the Freemason conspiracy
(c) the Communist conspiracy
(d) the Capitalist conspiracy
(c) the Jewish conspiracy.
6. The Jesuit order69 is indeed defined by many as a conspiracy, and

the Monita Secreta of 1614,70 composed by a Polish ex-Jesuit, fulfill
the need for a secret plan of operations with the help of which one
can hold the order responsible for every crime and every misfortune
and can stir up the masses. This has always been relatively simple in
times of crisis. St. Bartholomew’s Night, the assassination of Henry
III by Jacques Clement, the attempt on the life of Henry IV by
Barri£re and Chastel as well as his assassination by Ravaignac, the
English Gunpowder plot of 1605, the outbreak of the Thirty Years’
War, to say nothing of innumerable less important crimes and mis
fortunes, were ascribed to the Jesuits. That these tales should have
been believed, is naturally connected with the significance of false
concreteness in politics. There is some truth in many of these accusa
tions. It is precisely in this element of truth that the danger of these
views of history lies.
(2 8 4 ) A n x ie t y an d P o litic s
7. The denunciation of the freemasons is a similar matter. Thus the

English believed the Jacobite conspiracies to be the work of free
masons; the French Revolution was ascribed to a mysterious group of
Bavarian Illuminati,71 and this view of history again is closely con
nected with the anti-Jesuit one, since the Bavarian Illuminati had been
founded by Adam Weishaupt in 1776, in order to combat the influence
of the Jesuits.72 Again these assertions have some truth in them. Most
of the Encyclopedists were freemasons and more than half of the
members of the Estates General belonged to freemasonic lodges. But
in this audience surely no detailed discussion is needed to show that
the conspiracy theory represents a blurring of history.73
8. The theory of the Communist conspiracy follows the same model
and serves the same purposes. Thus the Russian October Revolution
is explained solely as a Blanquist conspiracy,74 embodied in Trotsky's
military revolutionary committee; the German Revolution of 19 18 is
laid to the charge of the devilish Lenin; the seizure of power by the
Bolsheviks in the satellite states is traced back to sinister conspiracies
in the Kremlin, and generally the relation of Bolshevism to the world
is equated with that of a conspiracy of a small group against the welfare
of humanity. Again this is partly true. The October Revolution was a
conspiracy—but in a definite historical situation and with an ideology.
The Bolsheviks would gladly have manipulated the German Revolu
tion of 1918—but they had neither the means nor the intelligence to
do it, nor could they, even if cleverer, have prevailed in the concrete
situation. The Communists in the satellite states naturally conspired—
but they could come to power only because the Red Army stood be
hind them and because the objective situation favored them. No con
spiracy, no matter how clever, would have been of any use and was of
any use in Western Europe. Nevertheless, the conspiracy theory is
believed not only by the masses, but even by serious writers who,
strongly under the influence of Pareto's simplistic antithesis between
elite and masses, generally tend to see in politics nothing but the
manipulation of the masses by elites, and for whom psychology and
political science are nothing but techniques of manipulation.
The purpose of the theory is clear: potential anxiety—whose con
crete significance still needs to be clarified—is actualized by reference
to the devilish conspirators: family, property, morality, religion are
threatened by the conspiracy. Anxiety easily becomes neurotic perse
cutory anxiety, which in turn can, under certain circumstances, lead to
a totalitarian mass movement.
9. W e could cite a great many more cases in which history was
viewed with false concreteness. Especially American history is full of
examples of such movements. There is, for instance, the Know-Nothing
Party of 1854-55 with ^ s hatred of the Irish Catholics and the German
immigrants. It originated in the secret “ Order of the Star-Spangled-
Banner” which was founded by native-born Protestants; they mis
treated Catholics and when asked about the Order they would answer,
“ I know nothing.”
The Ku Klux Klan is better known. Fear of status loss on the part
of the whites, especially of the poor whites, vis-a-vis the Negroes and
fear of the Pope and the Catholics were the basic factors which made
this secret society into a terroristic organization, from its foundation
in 1867 to the present day.
The Populist Party (1892), on the other hand, was born out of an
agrarian depression, as a protest against the rule of the railway-, in
dustrial-, and credit-monopolies, and against the gold standard. One of
its leaders developed a genuine theory of conspiracy: “ According to my
views of the subject the conspiracy which seems to have been formed
here and in Europe to destroy. . . from three-sevenths to one-half of the
metallic money of the world, is the most gigantic crime of this or any
other age.” (Quoted in S. E. Morrison and H. S. Commager, The
Growth of the American Republic, [1940] Vol. II, p. 245).
10. In similar fashion Bolshevism operates with the theory of capital
ist encirclement, in which the capitalists as a rule are personified by
W all Street. Now again there can be no doubt that there was a policy
of encirclement against Bolshevist Russia at the beginning of the
revolution; but it would be fatal to believe that the terror was the
consequence of the policy of intervention and of the cold war. Possibly
the policy of encirclement strengthened the terror, just as the wars of
intervention during the French Revolution gave Robespierre's Terror
a new impetus.75 But the terror as a normal method of politics against
the class opponent is contained in the Leninist definition of the dic
tatorship of the proletariat; it was then extended to the party and
finally to the supposedly classless society, without a visible connection
with the intensity of the capitalist policy of encirclement. But the
Bolshevist view of history, steadily activating anxiety, made possible
identification with the leader Stalin and thus underpinned his caesarist
dictatorship.
11. H ie most important type—if only because of its immense politi
cal influence—is the theory of the conspiracy of the Jews according to
the Protocols of the Elders of Zion.76 These contain the secret plans
of Jewish leaders, supposedly formulated in the year 1897, for achieving
Jewish world domination by force, terror, corruption, the disintegrating
influence of liberalism, freemasonry, etc. This world domination was
to be a mock-democracy, through which the Jewish leaders were to
operate. That the Protocols are a forgery, prepared by Czarist Russians,
was definitively established by the Bern trial of 1934-35.77 It is equally
beyond question that they are essentially a plagiarism of the work by
Maurice Joly directed against Napoleon III, Dialogue aux Enters entre
Machiavcl et Montesquieu.78
But if the Protocols represent a forgery, and if the plans for a Jewish
world conspiracy belong in the realm of mythology, where then does
that kernel of truth lie which according to my view is necessary to make
possible the influence which antisemitism and the Protocols have
had?79 I shall confine my analysis to Germany, but the German situa
tion can be understood only when one becomes aware of the fact that
in Germany before 1933 spontaneous antisemitism was extremely
weak. As early as 1942 I wrote, in opposition to an almost unanimous
opinion: “ The writer's personal conviction, paradoxical as it may seem,
is that the German people are the least anti-Semitic of all.” 80 I still
hold to this view today; for it is precisely the weakness of spontaneous
antisemitism in Germany which explains the concentration of National
Socialism on it as the decisive political weapon.
The element of truth (if one may call it that) is first of all a religious
one: the catechistic representation of the crucifixion and with it the
blood guilt of the Jews. But this is a thoroughly ambivalent element:
for it is precisely the crucifixion of Christ which makes possible the
salvation of Christians (and all men); and the spiritually Semitic origin
of Christianity is acknowledged by the Church.81 W hile thus the his
torical-religious defamation of the Jews forms the basis without which
antisemitism could hardly be activated, the catechistic representation
of the crucifixion is not sufficient by itself. The existence of a total
antisemitism can perhaps be better understood if we start from the
policy of National Socialism and seek to understand the role of anti
semitism within the political system. I can sketch the problem only in
its broadest outlines.82 Germany of 1930-33 was the land of alienation
and anxiety.83 The facts are familiar: defeat, a tame, unfinished revolu
tion, inflation, depression, non-identification with the existing political
parties, non-functioning of the political system—all these are symptoms
of moral, social, and political homelessness. The inability to under
stand why man should be so hard pressed stimulated anxiety which
was made into nearly neurotic anxiety by the National Socialist policy
of terror and its propaganda of antisemitism. The goal of National
Socialism was clear: the welding together of the people with the charis
matic leader, for the purpose of the conquest of Europe and perhaps
of the world, and the creation of a racial hegemony of the Germans
over all other peoples.
But how was the people to be integrated, despite all cleavages of
class, party, religion? Only through hatred of an enemy.84 But how
could one settle on the enemy? It could not be Bolshevism, because
it was too strong; the Catholic Church could not be so designated be
cause it was needed politically and loyalties to it were anchored too
securely. The Jews remained. They appeared in the public conscious
ness as powerful, but were in reality weak. They were relative strangers,
and at the same time the concrete symbols of a so-called parasitical
capitalism, through their position in commerce and finance; they in
carnated a supposedly decadent morality through their avant garde
position in art and literature; they seemed to be the successful com
petitors sexually and professionally. W ith all this the thesis of the
Jewish conspiracy had the element of truth necessary to permit this
view of history to become a frightful weapon. It would be mistaken to
want to construe a connection between the socio-economic status of a
person and his antisemitism; that is, to claim that the academically
educated person is more immune than the uneducated, or the poorly
paid more immune than the better paid. W hat is correct,85 however,
is that there exists a connection between loss of social status and anti
semitism. The fear of social degradation thus creates for itself “ a target
for the discharge of the resentments arising from damaged self
esteem.” 86
This leads us to the analysis of the historical situations in which
anxiety grips the masses.
V. Situations of Collective Anxiety, Identification, Guilt

I can treat these matters only in the form of theses because I deal
with them in detail elsewhere.87 W e have distinguished three strata of
alienation. The psychological stratum remains no matter what social
institutions man lives in. It creates potential anxiety which man in the
mass attempts to overcome through ego-surrender. This affective
identification with a leader is facilitated by the notion of false con
creteness, the theory of conspiracy.
But so far we have not yet said when such regressive mass move
ments are activated; that is, when potential anxiety can be activated
in such a manner that it can become a cruel weapon in the hands of
irresponsible leaders.
In order to get at this problem we must take into account the two
other strata of alienation: the social and political.
1. Alienation of labor: it is the separation of labor from the product
of labor through hierarchical division of labor which characterizes
modern industrial society. Probably no one doubts that the division
of labor as well as the hierarchical organization of labor have shown a
steady rise since the industrial revolution of the 18th century. German
romantic psychology of labor calls this the “ de-spiritualization of labor”
(Entsce/ung der Arbeit). This concept as well as the various remedies
arc dangerous—for they cover up the inevitability of this process of
alienation which must be admitted, understood, and accepted. If this
does not happen, if one refuses to take account of the inevitability of
the division of labor and of the hierarchical ordering of the process of
labor and attempts to “ spiritualize” labor instead of restricting it to a
minimum, then social anxiety is deepened. The attitude of the so-called
“ new middle class” (salaried employees) can be understood from this
process.8S
While the so-called new middle class does labor which—to remain
with the language of German psychology of labor—is “ more de-spirit-
ualized than that of the industrial worker, and although his average in
come probably lies below that of the industrial worker, he yet holds fast
to his middle class ideology and customs. Thus he refuses to take
account of the inevitability of the process and—as in Germany before
1933—becomes the social stratum most susceptible to Caesarism.
2. In a society which is constituted by competition, the competitor
is supposed to be rewarded for his effort when he is competent; that is,
when he exerts himself, is intelligent, and accepts risks. There is little
doubt that the principle of competition dominates not only the
economy but all social relations. Karen Homey, a representative of
Freudian revisionism,89 claims that the destructive character of compe
tition creates great anxiety in neurotic persons. Now this is not con
vincing when genuine competition really prevails, that is, competition
in which relatively equally strong persons fight with fair methods;
that is, the kind of competition which Adam Smith defines in his
Theory of Moral Sentiments as follows: "One individual must never
prefer himself so much even to any other individual as to hurt or
injure that other in order to benefit himself, though the benefit of the
one should be much greater than the hurt or injury to the other.” 90
And again, "In the race for wealth and honours and preferments, each
may run as hard as he can and strain every nerve and every muscle in
order to outstrip all his competitors. But if he jostle or throw down
any of them, the indulgence of the spectator is entirely at an end. It is
in violation of fair play, which they cannot admit of.” 9 11 cannot here
undertake a social analysis to show that this ethically circumscribed
competition does not exist and perhaps never has existed, that in
reality a monopolist struggle hides behind it, that, in other words, the
efforts of the individual, his intelligence, his vision, his readiness to
take risks, are easily shattered by the constellations of power 92
Behind the mask of competition, which must not necessarily have
destructive effects if it rationally organizes a society, there hide in fact
relations of dependence. To be successful in present-day society, it is
much more important to stand in well with the powerful than to pre
serve oneself through one's own strength. Modern man knows this. It
is precisely the impotence of the individual who has to accommodate
himself to the technological apparatus which is destructive and anxiety-
creating.93
But even where genuine competition is effective, no effort will help if
crises ruin the merchant. The inability to understand the process of
crises, and the frequent need to ascribe blame for them to sinister
powers, is an additional factor in the destruction of ego. This psycho
logical process operated in the so-called "old middle class” of Germany
(2 9° ) Anxiety and Politics
before 1933. But—to repeat—it is hard to see why fair competition
must have destructive functions.94
3. In every society that is composed of antagonistic groups there is
an ascent and descent of groups. It is my contention that persecutory
anxiety—but one that, as we said above, has a real basis—is produced
when a group is threatened in its prestige, income, or even its existence;
i.e., when it declines and does not understand the historical process
or is prevented from understanding it. The examples are too numerous
to be possibly mentioned here. German National Socialism and Italian
Fascism are classical examples.
But not only social classes resist their degradation by means of such
mass movements; religious and racial conflicts, too, frequently produce
similar phenomena. The conflict between Negroes and whites in the
southern states of the United States, the contemporary struggle of the
South African government against the natives, take place in accord
with the following scheme: the anxiety of a dominant white minority
that it will be degraded through the economic and political rise of
Negroes is used in propagandist fashion for the creation of affective
mass movements, which frequently take on a fascist character.
4. Social alienation, i.e., the fear of social degradation, is not ade
quate by itself. The elements of political alienation must be added.
Since I devote a separate essay to this phenomenon, I shall only point
out briefly what I have in mind. As a rule one is satisfied (above all, in
the American literature) with defining abstention from voting at elec
tions as political apathy.93 But I have pointed out elsewhere that the
word “ apathy” describes three different political reactions: first, the
lack of interest in politics, say the opinion that politics is not the busi
ness of the citizen because it is after all only a struggle between small
cliques and that therefore fundamentally nothing ever changes; then,
the Epicurean attitude toward politics, the view that politics and state
only have to supply the element of order within which man devotes
himself to his perfection, so that forms of state and of government
appear as secondary matters; and finally, as the third reaction, the
conscious rejection of the whole political system which expresses itself
as apathy because the individual sees no possibility of changing any
thing in the system through his efforts. Political life can, for example,
be exhausted in the competition of political parties which are purely
machines without mass participation, but which monopolize politics
to such an extent that a new party cannot make its way within the
valid rules of the game. This third form of apathy forms the core of
what I characterize as political alienation. Usually this apathy, if it
operates within social alienation, leads to the partial paralysis of the
state and opens the way to a caesarist movement which, scorning the
rules of the game, utilizes the inability of the citizen to make individual
decisions and compensates for the loss of ego with identification with a
Caesar.
5. The caesaristic movement is compelled not only to activate but
to institutionalize anxiety. The institutionalization of anxiety is neces
sary because the caesaristic movement can never endure a long wait for
power. This is precisely what follows from its affective basis. W hile
the non-affective mass organization, such as a normal political party,
can exist for a long time without disintegrating, the caesarist move
ment must hurry precisely because of the instability of the cement that
holds it together: the libido-charged affectivity. After it has come to
power it faces the need of institutionalizing anxiety as a means of pre
venting the extinction of its affective base by its bureaucratic structure.
The techniques are familiar: propaganda and terror, i.e., the incalcu-
lability of sanctions. I do not need to discuss this here. Montesquieu,
building on Aritsotle and Machiavelli, distinguished between three
constitutional and one tyrannical governmental and social system. Ac
cording to him, monarchy rests on the honor of the monarch; aristoc
racy, on the moderation of the aristocrats; democracy, on virtue (i.e.,
with him, patriotism); but tyranny, on fear.96 It must, however, not be
overlooked—and our introductory remarks about alienation and anxiety
had no other meaning—that every political system is based on anxiety.
But there is more than a quantitative difference between the anxiety
which is institutionalized in a totally repressive system and that which
is the basis of a halfway liberal one. These are qualitatively different
states of affairs. One may perhaps say that the totally repressive system
institutionalizes depressive and persecutory anxiety, the halfway liberal
system, true anxiety.97
Once the connection between anxiety and guilt is seen, it will at
once become obvious that these are different states of affairs.
In his Peloponnesian War, Thucydides reports the following about
Sparta: '‘Indeed fear of their [the Helots’] numbers and obstinacy even
persuaded the Lacedaemonians to the action which I shall now re
(29 2) A n x ie t y a n d P o litic s
late. . . . The Helots were invited by a proclamation to pick out those

of their number who claimed to have most distinguished themselves
against the enemy, in order that they might receive their freedom; the
object being to test them, as it was thought that the first to claim their
freedom would be the most high-spirited and the most apt to rebel.
As many as two thousand were selected accordingly, who crowned
themselves and went round the temples, rejoicing in their new free
dom. The Spartans, however, soon afterwards did away with them, and
no one ever knew how each of them perished.” 98
W ith his customary psychological penetration this greatest of all
historians saw clearly the connection of anxiety and collective guilt.
And then we read Plutarch’s description of the terrible C ryptia," the
Spartan secret police: “ By this ordinance, the magistrates [i.e., the
Ephors] despatched privately some of the ablest of the young men into
the country, from time to time, armed only with their daggers, and
taking a little necessary provision with them; in the daytime, they hid
themselves in out-of-the-way places, and there lay close, but in the
night issued out into the highways and killed all the helots they could
light upon.” 100 Here is a striking example of what we have in mind.101
W ho does not here think of Dostoyevsky’s The Possessed, when
Stavrogin gives the following piece of advice: “ All that business of
titles and sentimentalism is a very good cement, but there is something
better; persuade four members of the circle to do for a fifth on the
pretence that he is a traitor, and you’ll tie them all together with the
blood they've shed as though it were a knot. They’ll be your slaves,
they won’t dare to rebel or call you to account. Ha ha ha!” 102 This
famous passage in Dostoyevsky is important not only because it verifies
our psychological theory, but also because it shows at the same time
that the leader activates anxiety through guilt for his own advantage,
not for the sake of the led.
I do not wish here to discuss the psychological theory concerning
the relation of anxiety and guilt. According to Freud103 man’s feeling
of guilt stems from the Oedipus complex. It is this aggression that the
child represses and thus effects an unconscious feeling of guilt. The
feeling of guilt is the superego, man’s conscience.104 But that is pre
cisely why the intensification of the unconscious feeling of guilt per
mits man to become a criminal.105
If one examines the Spartan example, Stavrogin’s advice, the Fehme-
murders, and the collective crimes of the SS, one may perhaps under
take the following psychological analysis:
There are anxiety and an unconscious feeling of guilt. It is the task
of the leader, by creating neurotic anxiety, to tie the led so closely to
the leader that they would perish without identification with him.
Then the leader orders the commission of crimes; but these are, in
accord with the morality that prevails in the group—with the Lacedae
monians, the Nihilists, the SS—no crimes, but fundamentally moral
acts. But the conscience—the superego100—protests against the moral
ity of the crimes, for the old moral convictions cannot simply be
extirpated. The feeling of guilt is thus repressed and makes anxiety a
nearly panicky one, which can be overcome only through unconditional
surrender to the leader and compels the commission of new crimes.107
This is how I see the connection between anxiety and guilt in a
totally repressive society. Hence this anxiety is qualitatively different
from the anxiety that is the basis of every political system.
VI. Summary
It is time to summarize the results of my analysis:
1. Psychological alienation—the alienation of the ego from the in
stinctual structure, or the renunciation of instinctual gratifications—is
inherent in every historical society. It grows with the growth of modern
industrial society, and produces anxiety. Anxiety can be protective,
destructive, or cathartic.
2. Neurotic, persecutory anxiety can lead to ego-surrender in the
mass through affective identification with a leader. This caesaristic
identification is always regressive, historically and psychologically.
3. An important clue for the regressive character is the notion of
false concreteness, the conspiracy theory of history. Its peculiar danger
lies in the kernel of truth that is contained in this view of history.
4. The intensification of anxiety into persecutory anxiety is success
ful when a group (class, religion, race) is threatened by loss of status,
without understanding the process which leads to its degradation.
5. Generally, this leads to political alienation, i.e., the conscious
rejection of the rules of the game of a political system.
6. The regressive mass movement, once it has come to power must,
{294) Anxiety and Politics
in order to maintain the leader-identification, institutionalize anxiety.
The three methods are: terror, propaganda, and, for the followers of
the leader, the crime committed in common.
It is my contention that the world has become more susceptible to
the growth of regressive mass movements. Perhaps not so much in
Germany, because the after-effects of historical experience still work
rather strongly, despite all attempts to repress the memory of National
Socialism.
You will ask me, W hat can be done to prevent anxiety—which can
not be eliminated—from becoming neurotic-destructive? Can the state
accomplish this? Schiller—and with this we return to our point of de
parture—denies this in his Seventh Letter. He asks and replies:
'‘Should we expect this effect from the state? That is impossible,
since the state, as at present constituted, has caused the evil, and the
ideal state of reason cannot be the foundation of this improved human
ity but must itself be founded thereon.” 108
As educators we may thus perhaps say that education deserves the
first rank. But Schiller replies to this in the Ninth Letter with the
question, “ But arc we not proceeding in a circle? Theoretical culture
is supposed to induce the practical, and yet the latter is to be the condi
tion of the former? All political improvements should result from edu
cation of character—but how can the character ennoble itself under the
influence of a barbarous civil polity?” 109
Surely there are also other individual solutions—such as love. But it
is, after all, accidental whether or not one experiences it, and the risk
can be enormous with loss of object.110
Hence there remains for us as citizens of the university and of the
state the dual offensive on anxiety and for liberty: that of education
and that of politics.
Politics, again, should be a dual thing for us: the penetration of the
subject matter of our academic discipline with the problems of politics
—naturally not day-to-day politics—and the taking of positions on
political questions. If we are serious about the humanization of politics;
if we wish to prevent a demagogue from using anxiety and apathy,
then we—as teachers and students—must not be silent. W e must sup
press our arrogance, inertia, and our revulsion from the alleged dirt of
day-to-day politics. W e must speak and write. Idealism, as it is ex
pressed so nobly in Schiller’s Letters, must not be for us only a beautiful
Anxiety and Politics (2 9S)
facade, it must not once more become that notorious form of idealism
which in the past disguised the most reactionary and anti-libertarian
aims.
Only through our own responsible educational and political activity
can the words of idealism become history.
Notes
1 . A few lines referring to a German pamphlet on child phychology omitted
2. C . G . Jung has forcefully pointed to the significance of Schiller’s Letters for

our problem. Psychologische Typen (Zurich, 19 2 1), pp. 9 7 -19 2 . For the quotations
from Schiller’s Letters, I have used as a basis J. W eiss’s translation of 184 5, and
modified where necessary. (The Aesthetic Letters, Essays, and the Philosophical
Letters of Schiller, Boston, 1845.)
3. Fifth Letter (cf. W eiss, p. 16).
4. Sixth Letter (cf. W eiss, p. 21).
5. Op. cit. (cf. Weiss, p. 22).
6. Op. cit. (cf. W eiss, p. 23).
7. T he connection between Schiller and Hegel-Marx is clearly seen by Heinrich
Popitz, Dcr entfremdete Mensch. Zeitkritik und Geschichtsphilosophie des /ungen
Marx (Basel, 19 53) esp. pp. 28 -35 .
8. Sixth Letter (cf. W eiss, p. 22).
9. That is expressed in the sentence, “ But even the scanty fragmentary portion,
which still binds single members to the whole, depends not upon forms that pre
sent themselves spontaneously . . . but is prescribed to them with scrupulous
strictness by a formula to which the free discernment of each one is restricted.”
Ibid.
10. E . M . Butler, The Tyranny of Greece over Germany (New York and Cam
bridge, 19 33). Chapter V is on Schiller.
1 1 . E d. by Hermann N ohl, Tubingen, 190 7.
12 . Ibid., pp. 3 7 8 -38 2 . C f. esp. Herbert Marcuse, Reason and Revolution. Hegel
and the Rise of Social Theory (New York, 19 4 1) pp. 34—35.
13 . C f. Marcuse, ibid.
14 . Marcuse, op. cit., pp. 274 -287, and Popitz, op. cit., who adds little to M ar
cuse’s analysis, but is interesting in that he constantly confronts Hegel and Marx.
15 . “ Oekonomisch-philosophische Manuskripte” in Marx-Engels Gesamtausgabe,
First Div., V ol. I ll, p. 89.
16. Op. cit., p. 87.
17 . Ibid., p. 1 1 8 .
18 . C f. esp. the two articles by Erich Fromm , “ Die Psychoanalytische Charak-
terologie und ihre Bedeutung fur die Sozialpsychologie,” and “ Die sozialpsy-
chologische Bedeutung der Mutterrechtstheorie,” in Z eitschrift fiir Sozialfor-
schung, 19 3 2, pp. 2 5 3 -2 7 7 , and 1934 , PP- Both articles were written
prior to From m ’s revisionist period, but the former already points toward it.
19. (London, 1930), p. 39. This sentence is in itself valid only for patriarchal
society. W hether it holds true for matriarchal society may be left open here.
According to J. J. Bachofen, matriarchal right is “ natura verum, the father only
jure civile,” (Das Mutterrecht, ed. by K. M euli, V ol. I, p. 102); the stage of
(29 6 ) Anxiety and Politics
matriarchal right is that of poetry (pp. 12 4 - 5 ). C f. also Fromm ’s article cited above.
20. Freud, Civilization and its Discontents, p. 43.
21. Ibid., p. 63.
22. Ibid., pp. 63—4.
23. Ibid., p. 80.
24. For the systematic connection between sexuality and society in Freud (and
in other theories) cf. Roger Bastide, Sociologie et Psychoanalyse (Paris, 1950) pp.
2 1 1 ff.
25. T he most important recent works are probably the following: K. Abraham,
“ A short study of the development of the libido, viewed in the light of mental
disorders,” in Selected Papers on Psycho-Analysis (Hogarth Press, London); Ernest
Jones, “ Fear, Guilt, Hate,” in Papers on Psycho-Analysis (London, 1929 , 5th ed.);
Ernest Jones, “ The Pathology of M orbid Anxiety,” ( 1 9 1 1 ) in Papers on Psycho-
Analysis (4th ed.); Melanie Klein, “ On the Theory of Anxiety and G uilt,” in
Developments in Psycho-Analysis (The International Psycho-Analytic Library, N o.
43, London, 1952), pp. 2 7 1 - 2 9 1 ; Paula Heimann, “ Notes on the Theory of Life
and Death Instincts,” in Developments in Psycho- Ana lysis, pp. 3 2 1- 3 3 7 . T h e fol
lowing works of Freud: Civilization and its Discontents (London, 1930 ); Beyond
the Pleasure Principle (London, 19 22); The Ego and the Id (London, 1927); The
Problem of Anxiety (New York, 1936 ).
26. The Ego and the Id, pp. 8 4 -5.
27. In The Problem of Anxiety.
28. Ernest Jones, “ T h e Pathology of Morbid Anxiety.”
29. C f. Freud’s critique in Chapter X of The Problem of Anxiety.
30. C f. Paula Heimann's survey, “ Notes on the Theory of Life and Death In
stincts.”
3 1. For Freud— who follows Rank in this respect— when a danger situation
appears which resembles birth. C f. The Problem of Anxiety, Chapter X I.
32. Soren Kierkegaard, The Concept of Dread (tr. W alter Lowrie, Princeton,
1944), p. 38, distinguishes fear and anxiety. Fear is the reaction against a concrete,
external danger, while anxiety (the “ dread” of the title) is a condition of being
anxious.
33. C f. also M elanie Klein, “ On the Theory of Anxiety and G uilt,” loc. cit., p.
275 -
34. C f. Freud in The Ego and the Id. T he best formulation is in Franz Alexan
der, The Psychoanalysis of the Total Personality (New York, 1949), p. 1 0 1 .
K. Abraham, “ A short study of the development of the libido,” op. cit., was
probably the first to point out the connection between cannibalism on the one
hand and anxiety and guilt on the other.
35. Melanie Klein, op. cit., p. 282. See also R . E . Money-Kyrle, Psychoanalysis
and Politics (New York, n.d.).
36. But cf. Franz Alexander, Psychoanalysis of the Total Personality, concerning
the two main types of pathogenic educational methods: the excessively soft and
indulgent and the excessively severe, loveless. C f. Freud, Civilization and its Dis
contents, pp. 1 1 5 , 1 1 7 .
37. There is agreement on this point. C f. Freud, The Problem of Anxiety,
Chapters IX and X I, B .; Melanie Klein, op. cit., p. 279, and many others.
38. This is evidently what Freud has in mind in The Ego and the Id, pp. 7 1 - 7 2 ;
and Melanie Klein, op. cit., p. 279.
39. However, this is not completely correct, as Freud has pointed out: Group
Psychology and the Analysis of the Ego (London, 1922) p. 1 . After all, individual
A n x ie t y a n d Politics (2 9?)
psychology can never do without relations to others (or at least one other person).
T he only exception is narcissism. B ut it does seem useful to retain the prevalent
distinction of individual and social (or group) psychology.
40. A useful compilation is in Paul Reiwald, V om Geist der Afassen. Handbuch
der Massenpsychologie (Zurich, 1946).
4 1. T he most important book: La Foule CrimineUe (Paris, 1898, 2d ed). C f.
W alter Moede, "D ie Massen und Sozialpsychologie im kritischen Ueberblick,” in
Zeitschrift fur paedogogische PsvchoJogie und experimentelle Paedogogik, 1 9 1 5 ,
V ol. X V I.
42. Gustave L e Bon, T he Crowd (London, 1896) A concrete application of his
theory is in La Revolution Frangaise et la Psychologie des Revolutions (Paris, 19 12 ).
43. The Crowd, p. 36. However, L e Bon admits (ibid., p. 37) that the masses
can have a moralizing effect on the individual.
44. Group Psychology and the Analysis of the Ego.
45. Against this also W alter Lippmann, Public Opinion (New York, 1922),
p. 197.
46. Thus Freud, op. cit., pp. 2 1 - 2 2 .
47. This also holds true for W illiam MacDougall, The Group Mind (Cam
bridge, 1920) and for his theory of "prim ary induction of affects," for this too is
at bottom nothing but imitation or suggestion. T h e positive element in Mac-
Dougall’s theory will be worked out later.
48. Group Psychology and the Analysis of the Ego, p. 38.
49. Ibid., p . 1 2 0 .
50. Ibid., p. 91.
51. Ibid., p. 65.
52. Ranyard W est, Conscience and Society. A Study of the Psychological Pre
requisites of Law and Order (New York, 1945) P- 227.
53. In the postscript (X II) to Group Psychology and the Analysis of the Ego,
Freud formulates it a little differently. In the relation soldier-superior he assumes
ego-idealization, in the relation of comrade to comrade he assumes ego-identifica
tion. T he former may or may not be true. It may well be that the soldier does not
identify himself in any way with the army or with his superior, or he may undertake
ego-idealization with the superior or identify himself rationally with the army as
such. T he "ego-communitv” (co-operative identification, as I have called it) is in
my opinion correctly described.
As far as the identification with a church is concerned, one must again make
distinctions. Frequently, especially in Latin countries, the identification is strongly
rationalist; in Germanic countries, above all under the influence of Catholic R o
manticism, it is strongly libidinal. General statements may, perhaps, be made, but
this does not seem to me possible at this time.
54. In political theory, Rousseau’s vo lont6 generate would correspond to this.
55. Therefore R . Osborn’s thesis is completely mistaken. In his attempt to
integrate Marxism and Psychoanalysis (Freud and Marx [London, 19 37]),
demands that leadership be crystallized in the form of a leader, and that we must
idealize some individual for the masses on whom they can lean, whom they can
love and obey.
56. I use here, in place of many sources, Paul Piur, Cola di Rienzo (Vienna,
19 3 1) ; Mario Em ilio Cosenzo, Francesco Petrarca and the Revolution of Cola di
Rienzo (Chicago, 1 9 13 ) ; M ax Horkheimer, "Egoism us und Freiheitsbewegung,"
in Zeitschrift fur Sozialforschung, V (1936 ), pp. 1 6 1 - 2 3 1 , is the most important
analysis.
M y essay on The Theory of Dictatorship, which is now in preparation, contains
a detailed discussion; also an analysis of other caesarist movements. (See the in
complete version, printed in this volume— ed.)
There were many such movements at the end of the M iddle Ages. An excellent
survey is contained in G . Franz, D ie agrarischen Unruhen des ausgehenden
Mittelalters (Marburg, 1930 ).
57. V ar. X W I I I , Hortatoria, cited after Cosenzo, op. cit., pp. 16 -4 4 .
58. Freud, Group Psychology and the Analysis of the Ego, p. 89.
59. Le Tigre de 156 0 . Facsimile edition by Charles Read (Paris, 1875).
60. Institutio Cluistianae Religionis, IV , cap. X X , 30 and summarized in the
last of the 100 aphorisms.
6 1. In addition to the well-known theory of resistance of Calvin, which is de
veloped by Hotman in his Francogallia and Junis Brutus in his Vindiciae.
62. T he most important ones for France are those of the Parisian preacher Jean
Boucher: D e Justa Henrici Tertii Abdicatione, etc. (Paris, 1589), and Sermons de
La Simulce Conversion et Nullite de La Pretendue Absolution de Henry de Bourbon
(Paris, 15 94) .
T h e pseudo-democratic character of these and similar Leaguist theories is dis
cussed by M . C h . Labitte, D e la democratic chez les prtdicatcurs de la Ligue (Paris,
18 4 1); on Boucher, pp. 19 3 seq.
63. In his La Response de Jean Bodin £ M . de Malestroit (156 8). N ew edition
by Henri Hauser (Paris, 19 3 2 ) in the series: “ La V ie Ch£re au X V I£m e Si£cle."
64. C f. his Das Heptaplomeres des Jean Bodin (tr. by Guhrauer, Berlin, 18 4 1).
65. Les Six Livres de la R6publique, Book I, chap. II and IV ; Book V I, chap. IV .
66. Op. cit., Book I, chap. I.
67. Edited by E . Arbor (Westminster, 189 5), pp. 3 -4 .
68. In the Appendix of the Arbor edition.
69. T he literature is immense. Bernhard Duhr, S. J., Hundert Jesuitenfabeln
(Freiburg i. B.) compiles the “ fables"— but proves too much. The Secret Policy
of the English Society of Jesus (London, 1 7 1 5 ) is a good English example; Kaspar
Schoppe, Arcana Societatis Iesu publico bono vulgata cum appendicibus utillissimus
(Geneva (?), 16 3 5) a German one; A Startling Disclosure of the Secret W orkings
of the Jesuits, by a former French Roman Catholic, published by the author 1854,
a French one. Rene Fueloep-Miller, M acht und Geheimnis der Jesuiten (Leipzig,
1929) is the best-known German general survey.
70. On this cf. G . M onod in Academie des Sciences, Morales et Politiques,
Stances et Travaux, V ol. 19 10 , pp. 2 1 1 - 2 9 .
7 1 . Gaston Martin, La franco-maqonncrie franqaise et la preparation de la revo
lution (Paris, 1926, 2d ed.)
L . R . Gottschalk, “ French Revolution— Conspiracy or Circum stance," in Perse
cution and Liberty, Essays in Honor of G . L . Burr (New York, 1 9 2 1 ) pp. 4 45-4 72.
72. Details in Eugen Lennhoff, Politische Geheimbiinde (Zurich, 1 9 3 1 ) pp.
17 s .
7 3. Friedrich W ichtel’s well-known book, Weltfreimaurerei, Weltrevolution,
Weltrcpublik (19 19 ) traces all distress after 1 9 1 7 - 1 8 back to the freemasons. C f.
Eugen Lennhoff, Die Freimaurer (Zurich, 1929), p. 4 12 .
74. Curzio Malaparte, Die Technik des Staatsstreichs (Berlin 1932) is the best-
known example.
75. On this point cf. the cautious analysis by Donald Greer, The Incidence of
th e Terror during the French Revolution (Cambridge, U.S., 19 35).
76. T he following editions: Germ an: Z. Gottfried Beck (Pseud. Ludwig Mueller
Anxiety and Politics (2 99 )
von Hausen), “ Die Geheimnisse der W eisen von Zion," (Charlottenburg, 1 9 1 9 ) .
This edition was acquired by the N SD A P in 1 9 2 9 . French: M gr. E . Jouin, L e peril
/uddo-mafonnique, V ol. IV (Paris, 1 9 2 0 ) . English: V . E . Marsden (trans.), The
Protocols of the Learned Elders of Zion (London, 1 9 2 1 ) .
American: The Protocols and W orld Revolution (Boston, 1920) and many
others. T he excellent book by John S. Curtiss, An Appraisal of the Protocols of
Zion (New York, 1942) contains the best account of the history of this famous
forgen . T he work of Curtiss was written under the auspices of thirteen of the
most notable American historians.
77. C f. E . Raas and F. Brunschvig, Vernichtung einer Falschung: der Prozess
um die erfundenen W eisen von Zion (Zurich, 1938).
78. First ed., 1864. N ew ed., (Paris, 1948).
79. T he reasons which made National Socialism adopt the Protocols are detailed
by Hitler himself. M ein Kampf, pp. 423 ff.
80. In my Behemoth: The Structure and Practice of National Socialism (New
York, 194 2; 2d ed., 1944), p. 1 2 1 .
8 1. C f. Jacques Maritain, Anti-Semitism (London, 1 9 3 9 ) , p. 27.
82. For details cf. my book, op. cit., pp. 12 0 -2 9 , and the appendix to this chap
ter in the second edition (New York, 1944).
83. T he connection between anxiety and antisemitism has been empirically veri
fied by Bruno Bettelheim and Morris Janowitz, Dynamics of Prejudice. A Psycho
logical and Sociological Study of Veterans (New York, 1950) chap. V I.
84. Carl Schmitt saw this correctly, D er Begriff des Politischen, but made a
general theory of it instead of limiting it to regressive mass movements.
85. This point is also illuminated by the Bettelheim-Janowitz study.
86. Harold D. Lasswell, “ T he Psychology of H itlerism ," in The Political Quar
terly (19 3 3 ), pp. 3 7 3 -38 4 ; also in th e Analysis of Political Behavior (New York,
1949) pp. 2 3 5 -2 4 5 . Quotation on p. 236.
87. In my essay, “ T he Theory of Dictatorship." (See the incomplete version
printed in this volume— ed.)
88. C f. my essay, “ Social Structure and National Socialism” (unpublished).
89. The Neurotic Personality of Our Tim e (New York, 19 37) chs. X I and X II.
90. Theory of Moral Sentiments (2 vols., 1790) V ol. I, Part III, chap. I ll , p. 339.
9 1. Ibid., V ol. I, Part II, Sect. II, chap. II, p. 206; on the juristic problem, see
Franz Boehm, W ettberwerb und MonopoIJcampf (Berlin, 19 33).
92. Erich Fromm who, in Man for Himself (New York, 1947) pp. 6 7 -8 1, regards
the market operation (i.e., exchange) as depersonalizing and empty, and claims
that it leads to rising discontent, seems to overlook this. From m ’s more correct
thesis (in Escape from Freedom, N ew York, 19 4 1) that the loss of the ego results
from the discrepancy between the ideology of free competition and the actual
monopolization of power, can also not be fully accepted. Against this, correctly:
Theodor W . Adorno, “ Zum Verhaltnis von Psychoanalyse und Gesellschafts-
theorie," in Psyche, V I, 19 5 2 -3 , p. 10.
93. In a study now in the process of completion, on “ Concept of Virtue in
Politics," I attempt to bring this proof. (This study was not completed— ed.)
94. T o this claim corresponds in the social sphere the petty bourgeois socialism,
say of a Proudhon, to whom the distress of society seems to stem from exchange,
not from the process of production.
95. N ow in France, too: Charles Henri S6 vtne, Uabstentionisme politique en
France (Paris, n.d., 195373.
(30 0 ) Anxiety an d Politics
96. On this cf. my introduction to Montesquieu, T he Spirit of the Laws (New
York, 1 9 4 9 ) , reprinted in this volume.
97. One has to be clear about the fact that a totally repressive system is held
together not by neurotic anxiety alone— it depends on keeping this anxiety alive in
significant groups— but that material advantages and prestige are equally important.
98. Book IV , ch. 80 (tr. Crawley, N ew York, 1934).
99. M odem research, synthesized bv H . M ichell, Sparta (Cambridge, England,
19 52) pp. 16 2 -6 6 , accepts the reports of Thucydides and Plutarch.
100. Lvcurgus (tr. Dryden, revised by A . H . Clough).
1 0 1 . Preston H . Epps, “ Fear in Spartan Character," in Classical Philologyr,
January 19 3 3 , pp. 12 - 3 0 , proves, successfully in my view, that anxiety was the
constitutive element of the Spartan character. C f. Plutarch, Cleomenes, 9, and
Lysander, 30.5; Herodotus, V I, 79-80.
10 2. Part II, ch. 6, p. 393 (tr. Constance Garnett, N ew York, 1936).
10 3 . Civilization and its Discontents, p. 1 1 8 .
104 . The Ego and the Id., p. 77.
10 5. In Kierkegaard, (op. cit., pp. 65, 67) we find the following formulations—
naturally from different theoretical presuppositions:
1 . T he individual produces sin in his dread of sin.
2. T he individual in dread (not of becoming guilty but) of being thought
guilty becomes guilty.
106. T he significance of the superego for Freud’s theory is not quite clear to me.
If it means the "social conscience," that is, the sum of moral convictions that
prevail in a society, one gets into difficulties when antagonistic convictions con
front each other. But if it is the individual, unconscious feeling of guilt, then social
norms could play no part.
In our example it is indifferent which interpretation of the superego should be
accepted. According to the former: the prevalent moral convictions of Germany,
even under National Socialism, proscribed murder. T h e orders of superiors to gas
Jews because that would be useful to Germ any collided with the prevailing morality.
This is shown by the fact that these murders had to be committed in secret.
According to the latter interpretation: since the SS murderers had their child
hood experiences under the old morality, they must have had at least an unconscious
feeling of guilt.
10 7 . In his article “ T he Covenant of the Gangsters" in T he Journal of Criminal
Psychopathology, V ol. IV , N o. 3 (194 3), pp. 4 4 5-58 , Ernst Kris develops a similar
thesis which he, however, does not limit to the immediate participants in the crime
but extends to the whole German people. That the National Socialists made the
attempt to make the whole people into accomplices is, of course, beyond doubt.
It can hardly be claimed that they succeeded.
108. E d . W eiss, p. 29.
109. Ibid., p. 35.
1 1 0 . Freud, Civilization and its Discontents, p. 38.
THE W R IT IN G S O F F R A N Z N E U M A N N :
A SE L E C T E D C H R O N O L O G IC A L
B IB L IO G R A P H Y
1. “ Der Boykott im Volkcrrecht” (The Boycott in International Law), in W orter-

buch des Volkerrechts und der Diplomatic, V o l. I (1924), pp. 1 5 5 - 15 9 .
2. “ Der Kam pf um den Zwangstarif” (The Controversy over Compulsory Arbi
tration), in D ie Albeit, V ol. I V (19 25 ), pp. 7 0 2 -7 18 .
3. “ Gesellschaftliche und staatliche Verwaltung der monopolistischen Untemeh-
mungen” (The Administration of Monopolies by Social Groups and by the
State), in D ie Albeit, V ol. V I I (1928), pp. 393-406.
4. “ Gegen ein Gesetz zur Nachpriifung der Verfassungsmassigkeit von Reichsge-
setzen” (On the Judicial Review of Laws), in D ie Gesellschaft, V o l V I
(1929), pp. 517~ 536 -
5. “ Arbeitsvertragsrecht” (The Law of Labor Contract), in Ein Jahr Aibeitsge-
richtsbarkeit, Stuttgart, 1929, pp. 40-64.
6. D ie Politische und Soziale Bedeutung der Arbeitsgerichtlichen Rechtsprechung
(The Political and the Social Significance of the Administration of Labor
Law), Berlin, 1929 , 40 pp.
7. “ Die soziale Bedeutung der Gm ndrechte der Weimarer Verfassung” (The
Social Significance of the Fundamental Rights in the W eim ar Constitu
tion), in Die Arbeit, V o l. IX (1930 ), pp. 56 9 -582.
8. “ Der Entwurf eines Kartell- und Monopolgesetzes” (Draft of a Law for the
Control of Cartels and Monopolies), in D ie Arbeit, V ol. V I I (1930 ), pp.
7 7 3 -7 9 2 .
9. “ Reform der gemischtwirtschaftlichen und rein offentlichen Kapitalgesell-
schaften” (Reform of mixed and publicly owned private corporations) in
Handbuch der offentlichen Wirtschaft. Berlin, 1930 , pp. 424-444.
10 . “ Ober die Voraussetzungen und den Rechtsbegriff einer Wirtschaftsverfas-
sung” (On the Assumptions and the Legal Concept of an “ Economic
Constitution” ), in D ie Arbeit, V ol. V II I (19 3 1), pp. 588-606.
1 1 . Tarifrecht (Law of Collective Bargaining). Berlin, 1 9 3 1, 14 7 pp.
12 . Koalitionsfreihcit und Reichsverfassung. Die Stellung der Gewerkschaiten im
Verfassungssystem (Freedom of Association and the Constitution. T he
Position of the Trade Unions in the Constitutional Framework). Berlin,
1 9 3 2 ,1 3 9 pp.
13 . “ Tarifvertrag und Tarifvertragsrecht” (The Collective Contract and the Law
of Collective Bargaining), in Internationales Handworterbuch des Gewerk-
schaftswesens, edited by Heyde, Erkelenz, Lord Passfield, Sassenb^ch,
Stegerwald, and Albert Thomas. Berlin, 19 3 2, pp. 16 4 6 -16 6 9 .
14 . Das Gesamte Pressenotrecht (The Emergency Press Legislation). Berlin, 19 3 3 ,
9 1p p .
(302) The Writings of Franz Neumann:
15 . “ The Decay of German Dem ocracy/’ in Political Quarterly, V ol. IV (19 53),
PP- 52 5- 54 -
16 . “ T he State and Labor in G erm any," in The Contemporary Review (19 3 3 ),
N o. 828, pp. 7 1 3 - 7 2 1 .
17 . Trade Unionism, Democracy, Dictatorship, with a Preface by Harold J. Laski.
London, 19 34 , 94 pp-
18 . “ Trade Unionism in Germ any,” in The Highway, (London), V ol. X V I I (1938 ),
pp. 10 0 - 10 2 .
19 . “ Der Funktionswandel des Gesetzes im Recht der biirgerlichen Gesellschaft"
(The Change in the Function of Law in Modern Society), in Z eitschrift
fur Sozialforschung, V ol. V I (19 37), PP- 542—596.
20. “ Types of Natural L aw ," in Studies in Philosophy and Social Science (Zeit
schrift fiir Sozialforschung, vol. V II I , no. 3) 1940, pp. 3 3 8 -3 6 1.
2 1. Behemoth: The Structure and Practice of National Socialism. N ew York,
Oxford University’ Press, 194 2, X V I I , 532 pp. Second Edition, 1944;
Hebrew Edition; Japanese Edition.
22. The Fate of Small Business in Nazi Germany, in co-operation with A. Gurland
and O. Kirchheimer, U .S. Senate Committee Publication, Washington,
19 4 3, i 5 2 pp.
23. “ M ilitary Government and the Revival of Democracy in Germ any," in Colum
bia Journal of International Affairs, vol. II, 1948, pp. 3-20 .
24. “ Germany and Western U nion," An Address before the Academy of Political
Science, New York, Columbia University, 1949.
25. “ T he W ar Crim e T rials," in W orld Politics, vol. II, 1949, pp. 1 3 5 - 1 4 7 .
26. “ Soviet Policy in Germ any," in The Annals of the American Academy of
Political and Social Sciences, vol. 1949, pp. 1 6 5 - 17 9 .
27. Introduction to Montesquieu, The Spirit of the Laws, N ew York, Hafner
Publ. C o., 1949, 64 pp.
28. Die Wisseuschaft der Politik in der Demokratie (The Science of Politics in
Democracy), Schriftenreihe der Deutschen Hochschule fiir Politik, Berlin,
19 5 0 ,2 3 pp.
29. “ German Democracy 19 5 0 ," in International Conciliation, Carnegie Endow
ment for International Peace, N ew York, 1950 , pp. 2 5 1-2 9 6 .
30. “ Approaches to the Study of Political Power," in Political Science Quarterly,
vol. L X V , 1950 , pp. 1 6 1 - 1 8 0 .
3 1. Introduction to Daniel Lerner, The Nazi Elite, Hoover Institute Studies, series
B : Elite Studies, no. 3, Stanford University’ Press, 1 9 5 1 , 5 pp.
32. “ Das Arbeitsrecht in der Modcrnen Gesellschaft" (Labor Law' in Modern
Society), in Das Recht der Arbeit, ed. II. G . Nipperdey, vol. IV , no. 1,
1951.
33. “ T he Labor Movement in Germ any," in Germany and the Future of Europe,
ed. Hans J. Morgenthau, Chicago, University o f Chicago Press, 1 9 5 1 ,
pp. 10 0 -10 7 .
34. “ On the Limits of Justifiable Disobedience," in Conflict of Loyalties, ed. R . M .
M clver, N ew York, Harpers, 19 5 2 , pp. 4 5-56 .
35. “ Zum Begriff der Politischen Freiheit" (The Concept of Political Freedom),
A Selected Chronological Bibliography (303)
in Zeitschrift fur die Gesamte Staatswissenschaft, vol. C IX , no. 1, 19 53,
pp. 2 5 -5 3 .
36. “ T he Concept of Political Freedom /' in Columbia Law Review, vol. L III,
no. 7, 19 5 3 , pp. 9 0 1-9 3 5 . (Revised and enlarged version of the German
article.)
37. “ The Social Sciences," in The Cultural Migration. The European Scholar in
America, ed. Rex Crawford, Philadelphia, University of Philadelphia Press,
!953,pp.4-26.
38. “ Germany and W orld Politics," in Behind the Headlines, ed. Canadian Insti
tute of International Affairs, vol. X I V , no. 2, 1954, 17 pp. (Lecture delivered
at the Political Conference at Barnard College, New York, February, 1954.)
39. Angst und Politik (Anxiety and Politics), Collection Recht und Staat,
Tubingen, J. C . B . M ohr, 1954 , 44 pp. (Lecture delivered at the occasion
of the reception of the honorary degree of Ph.D . at the Free University,
Berlin.)
40. “ Oekonomie und Politik im Zwanzigsten Jahrhundert" (Economics and Politics
in the Twentieth Century), in Zeitschrift fur Politik, vol. II, no. 1, 19 5 5 ,
pp. 1 - 1 1 . (Lecture delivered at the Deutsche Ilochschule fur Politik,
Berlin, in January 19 5 1.)
4 1. (co-editor) D ie Grundrechte. Handbuch der Theorie und Praxis der Grund-
rechte (The Basic Rights. Handbook for the Theory and Practice of the
Basic Rights), ed. Franz Neumann, H . G . Nipperdey, Ulrich Scheuner,
4 vols, Miinchen, Duncker und Humblot, 19 5 5 .
42. “ Federalism and Freedom, A Critique," in Federalism M ature and Emerging,
ed. Arthur W . Macmahon. Columbia University Bicentennial Conference
Series, N ew York, Doubleday and C o., 19 55, pp. 4 4 -57.
43. “ Intellektnelle und politische Freiheit," in Sociologica, Frankfruter Beitrage
zur Soziologie, vol. I, Frankfrut-Main, Europaische Verlagsanstalt, 19 5 5 ,
pp. 1 5 7 - 17 0 . (Lecture delivered at the University of Bonn, July 1954.)
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Collier-M acm illan Canada, Ltd ., Toronto, Ontario

5. On the Lim its of Justifiable Disobedience 149

O n S eptember 2, 1954, Franz Neumann died in an automobile acci­

“ Intellectual and Political Freedom," after a speech given by Neu­

“ Economics and Politics in the Twentieth Century," the abridged

W ith the exception of minor editorial changes, especially in “ Anxiety

I t is difficult, perhaps impossible, to add any new idea to a discussion

I. Political Power and Psychology

Political power is an elusive concept.1 It embraces two radically dif­

II. Attitudes Toward Power

III. The Significance of Political Power

Once this self-examination is completed, the significance of political

IV. Roots of Political Power

V. Identification of Political Power

VI. Political Power and Freedom

F ascist and social-reformist critics conceive of the liberal state as a

12 . “ La liberty consiste & ne dependre que des lois.”

Natural Law doctrines begin by asserting the existence of a state of

2 1. Metapliysik der Sittcn. Rechtslchre II, 1. Allgemcine Anmcrkung A. (Transl.

* 0 n the tenth of this month, died at Paris, universally and sincerely

I. Montesquieu: the Man

The problem of France during Montesquieu’s adult life was the

Notes to Section II.

III. Montesquieu: the Political Scientist

It would be unfair to judge Montesquieu solely as a participant in

B ooks I - X I I I The government as such, its essential and gen­

B ooks X I V - X I X The concept of space. Space and government.

XVI the relation between the sexes (domestic servi­

III. B ooks X X - X X V Economics and Religion

X X V II the role of time on political institutions; the

V. B ooks X X V I and X X IX Theory of law and legislative practice

XXVI Positive, natural, canon and civil laws.

X X IX On the manner of composing laws.

This arrangement, even if accepted, solves no problems of interpreta­

Notes to Section III.

1 . Oeuvres completes de Montesquieu. Ed. by E . Laboulaye, seven Vols. Paris,

3. L ettres Persanes. There exists an excellent, critical edition by II. Barckhausen,

5. Pensces et Fragments inedits de Montesquieu. T w o V ols. Bordeaux, 18 9 9 -

when i started my work on this paper, I thought the answer to the

I t is a fairly widespread academic doctrine that political theory is con­

The Concept of Juridical Liberty

The burden of proof for intervention rests always with the

Clearly the political significance of this formula depends upon the

1. Law may mean a set of rules of behavior asserted to be objectively

Yet the meaning of the term “ positive law” is in itself a problem.

France and England adopted this position. Even Austin, protagonist of

The state is to be a Rechtsstaat; that is the watchword, and expresses what

1. No political system will fully uphold the legal value of calcula-

To answer the first two of these problems it becomes necessary to de­

So far, quite traditional problems have been discussed—although it

[T]he task of translating the majestic generalities of the Bill of Rights,

Justice Jackson's view, moreover, leads to these doubts: the formula

In short, the juristic notion of liberty, based upon the philosophic

The Cognitive Element in Freedom

The problem of political philosophy, and its dilemma, is the reconcilia­

In international relations, the concept of state sovereignty fulfilled

O n S eptember 2, 1954, Franz Neumann died in an automobile acci

“ Intellectual and Political Freedom," after a speech given by Neu

Political power is an elusive concept.1 It embraces two radically dif

B ooks I - X I I I The government as such, its essential and gen

XVI the relation between the sexes (domestic servi

This arrangement, even if accepted, solves no problems of interpreta

I t is a fairly widespread academic doctrine that political theory is con

To answer the first two of these problems it becomes necessary to de

The problem of political philosophy, and its dilemma, is the reconcilia

liberal and anti-democratic theories have been propagated which cham

“ I have already pointed out the distinction between a centralized govern