Roman law and Monarchomach politics

The unusual version of a social contract that was the basis of Rousseau's concept of the general will gave his moral and political thought a genuinely bipolar temporal quality. On one side it looked forward to German idealism and the concept of autonomy in the thought of Kant, Fichte, Schelling and Hegel. On the other side, however, it looked back either to the thought of Niccolò Machiavelli and Roman law or, alternatively, to the politics of the Monarchomachs and the idea of a Hebrew Commonwealth. Evidence of the first is not hard to find. Evidence of the second, however, is more difficult to locate, but can be found somewhat unexpectedly in Rousseau's examination of the subject of monarchy in Book 3, Chapter 6, of his Social Contract. The peculiar property of this form of government, Rousseau wrote there, was that it was, by nature, constituted by its “physical unity” rather than by “the moral unity which constitutes the prince,” as was the case with a democracy or an aristocracy. In these latter two forms of government, Rousseau pointed out, all the natural human faculties involved in, for example, feeling, reasoning, considering and deciding were united artificially by the law. In a monarchy, he explained, “all the faculties that the law unites in the others are found at once united” in a real person. The resulting combination of the physical and the moral meant that “the will of the people and the will of the prince, and the public force of the state and the individual force of the government, all combine in one chief mover,” thus “making it impossible to imagine any kind of constitution in which the least effort would produce a more considerable action.” Monarchy from this perspective was what Rousseau described as the human equivalent of Archimedes’ lever, equipped with a power to produce the maximum effect with the minimum effort.

The problem, however, was that this very concentration of power was also the source of the abuse of power. The absence of the fundamental procedural mediation by the law meant that monarchy was a system of government that had to rely solely on human arrangements, motivation, judgment and ability. In a monarchy the personal was political simply because the combination of sovereignty and government housed by something like the modern French monarchy left no real room for the impersonal and legal. If, Rousseau observed, a monarch happened to be endowed with “all the virtues he can have occasion for” and was “always the very thing he ought to be,” there could be no doubt that, under these conditions, “the regal government must appear evidently the best of all because it is incontestably the strongest and only wants a will more conformable to the general will to give it the superiority over all others.” The odds, however, were stacked against this possibility because the physical and moral unity of royal government, the hierarchy of its chain of command and the centralized and personal quality of its system of accountability all worked together to make monarchy more of a menace than a promise. “Samuel,” Rousseau concluded, “represented this in the strongest manner to the Hebrews, and Machiavel has proved it by incontestable evidence. Indeed this celebrated politician, while he pretends to be giving lessons to kings, gives the noblest lesson to the people and The Prince of Machiavel is the book of republicans.”Footnote ¹¹

The juxtaposition of the name of the Hebrew patriarch Samuel alongside the better-known figure of Machiavelli in Rousseau's assessment of monarchy has not been widely noticed.Footnote ¹² In making a connection between the two figures, Rousseau was rehearsing a famous episode in the Old Testament at 1 Samuel 8, where Samuel, in his old age, had made his sons judges over Israel. The sons, however, lacked Samuel's moral qualities, and the elders of Israel turned to the Hebrew patriarch and pleaded with him, as the passage in Scripture put it, to “give us a king, to judge us, like all other nations.” God, however, was greatly displeased by this appeal because it amounted to ending divine authority over the Israelites’ temporal affairs. God, accordingly, ordered Samuel to tell the people of Israel,

The episode acquired an emblematic status in Monarchomach thought in the sixteenth century, particularly in the frequently reprinted Vindiciae contra Tyrannos of 1579. It continued to resonate into the eighteenth century as part of a range of different assessments of royal power associated either with Grotius, Hobbes and, ultimately, Rome and Roman law or, on the other hand, with the politics of the Monarchomachs, the idea of a Hebrew Commonwealth and a covenant between God and the people of Israel that was violated when the Hebrews chose to establish a king. In the first formulation, the people was usually taken to be the name of the agent authorizing royal power. In the second formulation, however, the nation could be set alongside the people as the name of the agent objecting to the abuse of royal power. The two names were used almost interchangeably in the Vindiciae contra Tyrannos, but as another Monarchomach, Theodore Beza, had put it a little earlier in his Du droit des magistrats of 1574, “as long as right and justice have prevailed no nation has either elected or approved its kings without laying down specific conditions,” and, if these conditions were not met, those who “had the power to confer this authority have retained no less power again to divest them of that authority.”Footnote ¹⁴

Rousseau's usage was something like a synthesis of these two ascriptions of authorization. A social contract, he wrote in Book 1, Chapter 6 of his eponymous book, had the effect of creating something called a body politic, or republic, that was called state when it was passive, sovereign when active, or power when compared to other states. “As for the associates,” Rousseau continued, “they collectively take the name people; and individually are called citizens, as participants in the sovereign authority, and subjects as subject to the laws of the state.”Footnote ¹⁵ Nations, in this usage, were not relevant to the contractual side of political life because, as Rousseau went on to show in his examination of the legislator in Book 2, Chapter 7, of the Social Contract, nations existed before peoples and citizens. “The discovery of the best rules of society suited to nations,” he wrote there, “would require a superior intelligence who saw all of men's passions yet experienced none of them.” A legislator was neither a sovereign nor a magistrate and had no legislative right but was still able to achieve “an undertaking beyond human force” using “an authority that amounts to nothing.” The role called, therefore, for abilities that were even more extraordinary than those of a great prince. A legislator was “the mechanic who invents the machine,” but even the greatest of princes was “only the workman who puts it together and starts it running.”Footnote ¹⁶

As Rousseau went on to write in his posthumously published Considerations on the Government of Poland, the archetype of a legislator was Moses because a legislator could turn many nations into a single people, as Moses had done. He had “formed and executed the astonishing enterprise of founding into the body of a nation a swarm of unfortunate fugitives without arts, without arms, without talents, without virtues, without courage, and who, not having a single inch of ground of their own, made up an alien band on the face of the earth.” He turned “a servile troop” into “a free people” and “gave it that durable institution … which still continues to exist today in all its force, even though the body of the nation no longer exists.”Footnote ¹⁷ But, as Rousseau went on to indicate, particularly—but not only—in a Polish context, some of the ingredients of a nation, such as its culture, music, language, history and emotion, had a bearing on its existence as a people and, by extension, on its life within a state. “National institutions,” he wrote, also in his Considerations on the Government of Poland, “are what form the genius, character, tastes and morals of a people, what make it itself and not another, what inspire in it that ardent love of the fatherland [patrie] founded on habits impossible to uproot.”Footnote ¹⁸

The names of the two authorizing agents were, therefore, quite hard to distinguish. The first was a product of the Roman and Latin terminology associated from the sixteenth century onwards with the concept of a state. In Roman law, and in both republican and imperial Rome, legislation was the work of the SPQR or the Senatus Populus Que Romanus. Here, law was authorized by the Roman Senate and Roman people, not the Roman nation, because the Roman people was made up of many different nations (Etruscans, Umbrians, Sabines, Samnites, Latins, Campagnians, Lucanians and so on) and, in this legal context, this terminology survived into the nineteenth century. In this idiom of authority, and in every major European language, the concept of the people, peuple, popolo or Volk was standardly associated with the legal and political side of the state while the concept of the nation was associated with its cultural or ethnic side. This means as well that what has usually been taken to be a rather specialized German-language distinction between a Volkstaat and a Nationalstaat was part of a more generic distinction between different characterizations of the agents or sources of sovereign power. In this more general usage, the people of Great Britain could be said to consist of the English, Welsh, Scots or Irish nations, just as the people of France was sometimes said to consist of a number of nations (Breton, Provençal, Burgundian or Occitan, for example) united under the rule of a single sovereign. As John Locke's correspondent the early eighteenth-century historian of the French monarchy Jean-Baptiste Dubos put it in 1734 in his Histoire de l’établissement de la monarchie française dans les Gaules (History of the Establishment of the French Monarchy in Gaul), the extension of royal sovereignty over previously independent regions like Brittany or the Languedoc now meant that the French monarch ruled over one people made up of several different nations. The monarchy with its laws and institutions was responsible for the unitary character of the French people, while the traditions and culture of its various provinces meant that France still housed several different nations.Footnote ¹⁹ The France of Louis XIV was, in short, a Volkstaat, not a Nationalstaat.

In the neo-Roman usage followed by Dubos, the people was the artificial entity because it was the entity that was subject to the rule of law and the authority of the state. The nation, on the other hand, was the natural entity because it was the product of its own language, culture and history. Roman law helped to make the distinctions clearer. On its terms, a people was subject to imperium or the commands of a ruler, while a nation could still have possession of its dominium or domain over the territory and goods that it occupied. These distinctions meant that, before the nineteenth century, the real counterconcept of a nation was not a state, but an empire, because an empire could combine dominium and imperium to give the phrase “the king's state” a very literal meaning, as was the case in seventeenth-century France.Footnote ²⁰ Nations could have their own status, estates or states, either within or without empires, but empires could sometimes swallow up nations or interfere with their existence to a point at which national survival might be threatened by a foreign empire and an alien people. In these circumstances nations could—and did—assert their sovereignty. This was the usage underlying the Dutch revolt of the sixteenth century and its invocation of the distinctive rights or privileges of the ancient Batavian nation. It was still the usage underlying late eighteenth-century Polish resistance to imperial partition and its invocation of the rights or privileges of the ancient Sarmatian nation, and, arguably, remained the usage of the American Revolution of the eighteenth century.Footnote ²¹

Nations were natural, but peoples were more complicated because they owed their existence as much to laws and states as to customs and culture. Nations, from this perspective, provided a moral compass to peoples. In the many later interpretations of what 1 Samuel 8 was supposed to mean, the biblical text was, accordingly, taken to be either a mandate for tyrants, an admonition to monarchs to uphold the rule of law or an authorization or incitement to nations to destroy arbitrary power and, if necessary, in the terminology of early modern Europe, to become Monarchomachs. To Jacques-Bénigne Bossuet, the very orthodox late seventeenth-century French bishop, the passage from Samuel was simply a description of absolute royal sovereignty. To the American Founders, on the other hand, the seal chosen to head the official publications of the United States was designed to carry the inscription, “Rebellion to Tyrants Is Obedience to God,” under an image of Moses parting the Red Sea to enable the Israelites to recover their freedom.Footnote ²²

This tradition of Monarchomach thought was also still alive and was referred to regularly in eighteenth-century France. It was rehearsed repeatedly in the many reprints of the anonymous, but famous, sixteenth-century tract Vindiciae contra Tyrannos (or A Defence of Liberty against Tyrants, as the English translation was entitled), that were published in the seventeenth and eighteenth centuries. It was a feature of the story known as the History of the Troglodytes that was part of Montesquieu's Persian Letters, where it became a commentary on both the English Revolution of 1688 and the implications of a possible Jacobite restoration.Footnote ²³ It was, more recurrently, a component of the many conflicts that took place over the course of the eighteenth century between the French royal government and one or other of the thirteen French parlements and their Jansenist magistrates. Whenever, asserted the magistrates of the parlement of Brittany in 1757, “it is a matter of general laws that interest the nation, it is the nation that has to be consulted.”Footnote ²⁴ Accordingly, the scriptural passage was given a prominent presence in the Jansenist lawyer Claude Mey's Maximes du droit public français of 1775. There, after an extended commentary on the relationship between the Hebrew, Latin and French versions of the passage in Samuel, Mey concluded that it was an outrage to the idea of divine justice and the many other divine perfections to imagine that God had created twenty million inhabitants in a kingdom to become the plaything of a single individual entitled to dispose of them arbitrarily.Footnote ²⁵ The whole point of the scriptural story, Mey explained, referring to an interpretation of the passage in Samuel by the sixteenth-century French jurist Antoine Loiseau, was to give kings a warning and provide them with a set of guidelines about how to avoid jeopardizing their thrones. The many different interpretations of the story were described and discussed even more extensively in a huge three-part compilation entitled Origine et étendue de la puissance royale suivant les livres saints et la tradition (The Origin and Extent of Royal Power According to the Gospel and Tradition) that was published in 1789 by one of Mey's Jansenist collaborators, Gabriel-Nicolas Maultrot. In the context of the developing argument over the royal debt and the relatively recent precedent of a royal debt default, its message was curiously ambivalent. If defaulting on a debt was obviously arbitrary, allowing a debt to grow was potentially unjust.Footnote ²⁶ Either course of action revealed the underlying danger of entrusting a king with absolute power.

The passage about Samuel had a more general resonance throughout the eighteenth century. Rousseau's reference to it in 1762 was matched in 1765 in the Abbé Gabriel Bonnot de Mably's Observations sur l'histoire de France, where, Mably wrote sarcastically, the bishops of France,

The word “king,” Antoine-Adrien Lamourette (famous both as a constitutional bishop and for the irony of his fraternal kiss of peace at the beginning of a particularly divisive period of the French Revolution) announced in a sermon in 1790, was associated so strongly with paganism among the ancient Hebrews that their sacred writers never used the word “king” without also referring to the miseries of idolatry because, to Abraham's progeny, the word was taken to be the equivalent of a satellite, lictor or tyrant. “In those days,” Lamourette explained, picking up the theme of Samuel and God's warning to the Hebrews about what would happen if they established a king, “the judges and elders who governed the state were no more than executors of the law that God had placed on deposit with the body of the nation. The people was all and everything was for the people.”Footnote ²⁸ Unsurprisingly, the passage about Samuel resurfaced in the French periodical press soon after the overthrow of the French monarchy on 10 August 1792 and the proclamation of the first French republic a month later.Footnote ²⁹ From this perspective, there was nothing very new in the article (Article 38) that, in April 1793, Lamourette's fellow former member of the Academy of Arras, Maximilian Robespierre, proposed as an addition to the new Declaration of the Rights of Man of the first French Republic. “Kings, aristocrats and tyrants whoever they are,” the article announced, were “slaves in rebellion against the sovereign of the earth, which is the human race, and against the legislator of the universe, which is nature.”Footnote ³⁰ Here, the novelty was not so much the rejection of monarchy, but its application to the whole of humanity. Robespierre might well have been the first modern socialist, as he began to be described in France after 1830, but he certainly was the last Monarchomach.

The sovereignty of the people and the sovereignty of the nation

There was, however, a further significance to Robespierre's draft Declaration of the Rights of Man of 1793. Article 3 of the original Declaration of the Rights of Man of August 1789 had, famously, asserted that the “principle of all sovereignty resides in the nation.” Article 14 of Robespierre's draft declaration asserted that “the people is sovereign; the government is its work and its property; public officials are its agents [commis].”Footnote ³¹ This switch back from the nation to the people in Robespierre's declaration of the rights of man was matched by the fact that aristocrats and tyrants were not particularly visible in God's admonition to Samuel about the dangers of kings and, more generally, were not conspicuously prominent features of Monarchomach thought. Their joint presence in Robespierre's pronouncement, coupled with the additional articles on property that he proposed in his draft declaration of the rights of man, helps to throw new light on the relation of both national and individual self-determination to the politics of the French Revolution and, more broadly, to the complicated mixture of the old and the new involved in the modern concept of self-determination. It does so because it indicates that adding individual self-determination to national self-determination injected a new and potentially intractable problem into the question whether a people or a nation was the proper subject of sovereign authority.

Peoples and nations are not straightforward physical entities like stones or trees. Usually they have to be identified indirectly by means, for example, of a language, a flag or a map. Individuals also seem to have a more than purely physical quality, and this too calls for indirect identification, such as a smile, a walk or a laugh. But this is as far as the analogy can go because individuals are simply more finite, particular and concrete than peoples or nations can be partly because they have more radically time-bound lives than those of peoples and nations. This was one of the points of Rousseau's examination of the origin of inequality and his account of how social interaction added the relative qualities of strong or weak, rich or poor, powerful or powerless and rulers or ruled to the absolute and purely physical differences that exist among individuals. In this respect, Robespierre's insistence on the people, not the nation, as the subject of sovereignty, together with the further clauses on the subject of property that he proposed as additions to the Declaration of the Rights of Man in 1793, captured the logic of Rousseau's account of the origin of inequality quite effectively. But Rousseau's solution to the resulting problem was radically different from Robespierre's. Where Robespierre proposed something analogous to the multiple councils of established republics like Florence, Venice and Geneva as the basis of the new system of government of the first French Republic, Rousseau referred consistently to a very different system of government, one that certainly had some features in common with the government of republican Rome, but also had qualities that were more apparent in modern Poland and Corsica. These qualities were the basis of the system of government that Rousseau called an elective aristocracy with its foundation in the combination of administration and election that he called “gradated promotion.”

Robespierre's assertion in 1793 of the sovereignty of the people in place of the sovereignty of the nation was in fact the third in a sequence of more or less contingent switches to take place during the French Revolution. Cumulatively, they had the effect of complicating the earlier neo-Roman distinction between the concept of the people as a legal and political agent and the nation as a nonpolitical repository of language, culture and everyday life. The first was the refusal, late in 1788, by France's first two estates, the clergy and nobility, to form a single deliberative assembly by joining and voting with the representatives of the third estate in the forthcoming French Estates General. This refusal meant that the previously comprehensive concept of the people now seemed to apply only to that part of the people that was neither noble nor clergy but simply the third estate. In the ensuing deadlock, and after considerable terminological uncertainty, the representatives of the third estate and most of the lower clergy decided to drop the term “people” from their unilateral proclamation of sovereign power and, on the recommendation of Emmanuel Joseph Sieyès, to replace it by the more neutral and inclusive term “nation.” The second contingent event was the unexpected appropriation of Rousseau's political thought by Sieyès and his political allies and its application both to the system of gradated promotion and to the new concept of the nation as the ultimate source of political authority and legitimacy. The result was a protracted fight over Rousseau's intellectual and political legacy which, in the context of the dynamics of revolutionary politics, gave rise to the third contingent event, now centered on Robespierre's reinstatement of the people, in conjunction with the concepts of a republic, the rights of man and conciliar government as the ultimate sources of political authority and legitimacy.

In this sequence, the important event was the synthesis that Sieyès established between Rousseau's political thought and the concept of a nation. This synthesis was inextricably bound up with the fierce political conflict that developed in France between 1789 and 1793 over, among many other things, whether the nation or the people was the ultimate authorizing agency. In the first move in this conflict, the concept of a unitary people and an indeterminate number of nations gave way to the concept of a unitary nation and an indeterminate number of people. Here, Sieyès took over the old Monarchomach concept of the nation as a source of resistance and grafted it onto the Roman-law concept of authorization by the people as the basis of legitimate political power. The resulting substitution of the nation for the people left the old idea of a single people in something of a conceptual limbo. This initial uncertainty gave rise, for a number of specific reasons, to a popular reaction, with the old Monarchomach concept of a nation now being turned into a redefined concept of the people, now defined as a source of resistance to authority and of opposition to empire. In this second move, one associated with Jacques-Pierre Brissot, Jérôme Petion, Étienne Clavière and the politics of the Girondins, the people came to be given the name of sans-culottes, and politics came to be redefined as popular, demotic and domestic rather than diplomatic, royal and imperial. The third and final instalment of this sequence of moves and countermoves was a product of the earlier two. In it, Rome and its legacy lost their older royal and imperial connotations and came instead to be associated with republican government and the politics of redistribution. When, in 1794, François-Noel Babeuf decided to change his name, he chose to adopt the name of Gracchus rather than, for example, Samuel, as a symbol of his social and political allegiances.Footnote ³²

The cumulative effect of this sequence of moves and countermoves was to block out much of the long afterlife of Monarchomach thought from the history and historiography of eighteenth-century French political thought and, as a result, to conceal the scale of the conceptual transformation involved in the passage from earlier Roman and royal justifications of authority to later Roman and republican justifications of resistance to authority. Although the Monarchomach legacy remained very visible in, for example, Thomas Paine's Common Sense of 1776 and, too, in the significance attached to the thought of Moses Lowman in the publications of Samuel Taylor Coleridge and William Wordsworth in Britain during the 1790s, in France the biblical story of God's warning to Samuel was slowly displaced by the moral and political legacy of republican Rome and the related subjects of agrarian laws, the Gracchi brothers and the politics of the old Roman maxim salus populi suprema lex esto highlighting the public safety as the supreme law.Footnote ³³

By 1819, when the French skeptic François de Chasseboeuf, Comte de Volney, published his Histoire de Samuel, inventeur du sacre des rois (The History of Samuel, Inventor of the Royal Coronation), the Hebrew story had turned into a more anthropologically oriented account of the part played by oracles, wizards, seers or priests (for Volney the words were interchangeable) in creating and manipulating the beliefs and powers associated with the ceremony of the royal coronation. Here, the emphasis fell on the culture of the largely rural societies of the ancient Middle East which, according to Volney, were similar in character to those of modern Brittany, the Vendée or Provence because both housed the various confraternities of penitents, calculating fortune-tellers and opportunistic diviners whose values and beliefs formed a favorable environment for priestcraft. In Volney's rendition, Samuel was more of a Machiavellian than a Monarchomach.Footnote ³⁴ This switch from history to anthropology and from moral realism to skeptical inquiry was almost the end of the Monarchomach story. It was still present, however, in the early publications of the anarcho-socialist Pierre-Joseph Proudhon, where the announcement that property was theft presupposed the initial logic of 1 Samuel 8 and the human appropriation of the original divine gift and divine law. There was a brief further revival of interest in the scriptural passage at the time of the centenary of the French Revolution in 1889 when Oscar Solomon Straus's examination of the Hebrew Commonwealth in his oddly entitled The Origin of Republican Form of Government in the United States of America was published in a French translation in 1890 with a long introductory preface by the Belgian socialist Émile de Laveleye. In his preface, however, Laveleye was careful to place the Hebrew commonwealth alongside both the Anglo-Saxon tradition of self-government and the Protestant concern with private judgment and doctrinal pluralism in making his evaluation of the moral, political and historical significance of 1789.Footnote ³⁵ In this context, the Hebrew commonwealth was simply one of a number of different sets of values and arrangements.

The result of this protracted sequence of moves and countermoves was that, by the time of the centenary of the French Revolution in 1889, the close intellectual relationship between the thought of Rousseau and Sieyès which, a century earlier, had been recognized quite widely (by, for example, some of Sieyès's most important political allies, the Comte de Mirabeau and Pierre-Louis Roederer) had been pushed out of the francophone context in which it originated and had moved instead into the somewhat different context of nineteenth-century German political thought. In France, Rousseau's legacy came to be associated with Robespierre, Babeuf and Buonarroti; in Germany, it came to be associated with Kant, Fichte and Hegel. The result was a kind of bifurcation. On one side, Rousseau came to be aligned with the requirements of social integration and the politics of redistribution. On the other, he came to be aligned with the requirements of social differentiation and the politics of the Rechtsstaat. In the early nineteenth century the two sets of requirements were symbolized by the Roman and republican connotations of Jacques-Louis David's Oath of the Horatii on the one hand and by the modern post-imperial connotations of the Nazarene painter Johann Friedrich Overbeck's Italia und Germania of 1828 on the other.Footnote ³⁶ Ultimately, the two sides came together as a theory of party politics in the context of what, variously, was called a national state, a nation-state or, simply, democracy. By then, however, the origins of that theory in the unusual concept of a political society that Rousseau passed on to Sieyès had been largely forgotten.

Rousseau and Sieyès

There is strong textual evidence that Sieyès was a careful and conscientious reader of Rousseau. If, Rousseau wrote in his posthumously published Considerations on the Government of Poland, the Polish nation was to have “a certain force, a certain stability,” it followed that the people who “until now counted for nothing” should “finally count for something.”Footnote ³⁷ The passage echoed Rousseau's earlier assessment in the Social Contract of the status of the French third estate. When, he wrote there, political decision making was made by the three estates of the clergy, nobility and commoners, “the assembly of these representatives is called in some countries the third estate of the nation, so that the particular interests of two orders are placed in the first and second ranks and the public interest only in the third.”Footnote ³⁸ Both passages were transferred, almost verbatim, to the biting comparison between the present status of the third estate (nothing) and what it aspired to become (something) at the beginning of Sieyès's What Is the Third Estate?. This, Sieyès wrote, was because the third estate was a “complete nation” with all the resources and activities needed for a nation to exist. The same did not apply to the nobility. As Sieyès explained, still making use of the established distinction between a people and a nation,

The same recognizable level of verbal and conceptual continuity can be found in Rousseau and Sieyès on government. “A hereditary crown prevents trouble,” Rousseau observed, also in his Considerations on the Government of Poland, “but brings on servitude; election maintains freedom, but shakes the state with each new reign.”Footnote ⁴⁰ To avoid either possibility, he proposed that Poland's kings should be chosen by lot from among the thirty-three heads of the Polish palatinates. The names of three candidates would be selected in this way and one would then be elected king by the Polish diet. With this form, Rousseau wrote, “we combine all the advantages of election with those of hereditary succession.”Footnote ⁴¹ He had originally used the phrase in 1767 in a letter to the Physiocrat founder Victor Riqueti, Marquis de Mirabeau, that was published in 1768 as part of a pamphlet by Mirabeau entitled Précis de l'ordre légal (An Outline of the Legal Order). The letter was then reprinted in the second, 1775, edition of another book by Mirabeau entitled Lettres sur la législation, ou l'ordre légal dépravé, rétabli et perpétué (Letters on Legislation, or the Legal Order Depraved, Restored and Perpetuated). The phrase resurfaced in 1791, this time in the public debate that took place between Sieyès and Tom Paine after the king's flight from Paris and the possibility that the royal government would be replaced by a republican form of government. In this debate, Sieyès argued that something analogous to a monarchy was preferable to what he called polyarchy, or a government with a collective head of state, and that it was also possible to establish a form of election that, as he put it, was “very applicable to the first public function.” Although he did not specify how this electoral system would work, his claim that it would “unite all the advantages attributed to hereditary without any of its inconveniences and all the advantages of election, without its inconveniences” was sufficiently redolent of Rousseau to indicate that it was simply a French adaptation of the system of gradated promotion that Rousseau had recommended to the Poles.Footnote ⁴²

This system was one of the cornerstones of what, elsewhere, Rousseau described as “the democratic constitution.” The constitution in question was Rousseau's plan to combine individual and collective self-determination or, as he also put it, to integrate what he called a moi with a moi commun. “The democratic constitution,” Rousseau explained in the eighth of his Letters from the Mountain in 1764,

Some, he continued, “imagine that a democracy is a government in which the whole people is magistrate and judge,” while others “do not see liberty except in the right to elect one's leaders and (being subject only to princes) believe that the one who commands is always the sovereign.” None of this, Rousseau implied, was correct because liberty was more than the right to elect one's leaders while sovereignty was not only, or not always, a capacity to command. If, Rousseau wrote, the correct distinctions (between sovereignty and government and between the legislative and executive) had been fully understood, then, he wrote, “the democratic constitution is certainly the masterpiece of the political art; but the more admirable the mechanism of it, the less it belongs to common eyes to penetrate into it.”Footnote ⁴³

Rousseau's conception of this “masterpiece of the political art” had a number of different components. The first was the figure of the legislator. The second was the division of political society into a number of different, hierarchically arranged, units and subunits. The third was the connection, based on individual votes, between the constitutional proposals supplied by the first and the multiplicity of different decision-making units involved in the second. The result was a state made up of several different municipal, regional, provincial or national branches of government and a government containing several different ministries, councils, committees or agencies, while society itself would house the many different occupations, activities or levels of qualification that enabled a nation to exist. Irrespective of their various individual purposes or composition, however, each unit would have the same type of democratic constitution as the rest. This meant that decision making within each unit would be the work of a general will, but that decision making by any particular part of the larger whole would be the work of a particular will. As Rousseau emphasized at the beginning of Book 3, Chapter 5, of the Social Contract, both the sovereign and the government were “two quite distinct moral persons,” with “consequently two general wills, one relative to all the citizens, the other solely for the members of the administration.”Footnote ⁴⁴ Sovereignty was certainly singular, but government and administration could be made up of many different levels, on the one hand with general wills within each unit, but on the other with many particular wills within the whole administrative hierarchy.

The complicated quality of the resulting hierarchical arrangement makes it possible to clarify Rousseau's otherwise opaque assertion that in a democratic constitution nothing was more separate than the sovereign and the government and, by extension, the legislative and executive powers. The same hierarchical arrangement also helps to explain what Rousseau meant by claiming that sovereignty was something more than the power to command because, as should be obvious, that power was as much a power of government as of sovereignty. Sovereignty, or the general will, was instead what made that power legitimate because it added something extra to the idea of majority rule. It could do this because the general will was based on the more fundamental principle sanctioned by the initial, unanimous, social contract that stipulated that a majority decision would be a legitimate decision. Majorities and minorities would arise at every level of the political and administrative system, but the resulting array of more or less local differences would be given their legitimacy by the general will. At the same time, however, the sovereign and its legislative power would be pushed into the background by the multiplication of governmental and executive powers.

Government, with Rousseau, displaced sovereignty. Sovereignty, in keeping with Rousseau's claim at the beginning of the Social Contract, was the power to legitimate, or the power to make something lawful, rather than the power to command. Sovereignty limited government but also reinforced government because it added legitimacy to the many decisions based on the principle of majority rule made among the many units and subunits of the whole system. On the inside, these decisions could be described as legislation, or the work of a general will, but from the outside they would, instead, be administrative decisions, straightforward decrees, or the work of particular wills. The general will was normative while government combined power with the legitimacy supplied by the general will. The array of overlapping distinctions also helps to clarify why, in Rousseau's rendition, the general will applied ultimately to individuals, while majority rule applied to collectivities. In the final analysis, however, the two would coincide because a will that was truly general would have to encompass the will of every individual, including those whose votes had gone to the other side. Here, what mattered to Rousseau was that a democratic constitution would have several different levels of scale and scope and, consequently, several different levels of decision making and government. Majorities and minorities would vary from level to level and this too was compatible with the idea of a general will. Despite its complexity, the whole system would begin and end with individual freedom. Henceforth, as Sieyès put it memorably, the old distinctions between monarchy, aristocracy and democracy could be left to fall by the wayside because the new distinctions would be centered on the differences between what Sieyès called a ré-privé, a ré-total and a ré-publique.Footnote ⁴⁵ As the different adjectives were designed to show, only the third of these compounds favored both individual and national self-determination. In the context of the public debate that took place between Sieyès and Tom Paine in the summer of 1791 (immediately after the abortive royal flight to Varennes in one of the many turning points of the French Revolution), God's warning about the price to be paid for having a king could have looked either to be unusually salient or to belong to another age.Footnote ⁴⁶ Sovereignty legitimated. Governments ruled. Under electoral conditions and majority rule, a government that was illegitimate could be replaced by one that was legitimate, leaving the subject of sovereignty undisturbed.

Hegel, Bluntschli, Bosanquet and Hauriou: the national state and the nation-state

The new terminology was redolent of Rousseau's earlier skepticism towards the old distinctions between monarchy, aristocracy and democracy. “Thus,” he wrote, in Book 3, Chapter 3, of the Social Contract, “there is a point at which each form of government is indistinguishable from the next, and it is apparent that under these three names government really admits as many diverse forms as there are citizens in the state.”Footnote ⁴⁷ The problem, however, was that there was more than one criterion of legitimacy that could be applied to the combination of individual and national self-determination produced by separating sovereignty from government as clearly and strongly as Rousseau and Sieyès appeared to envisage. From one perspective, more individual self-determination seemed to mean less government and, consequently, fewer fiscal, legal, military or religious encroachments from the outside world. From another perspective, however, more self-determination seemed to mean more egoism and, consequently, less responsiveness to the fiscal, legal, military or religious claims of the outside world. The same double bind applied to the concept of national self-determination. To maintain the element of choice involved in individual votes and secret ballots, the electoral system had to be kept separate from the property system. But to maintain the civic commitment and capacities involved in electoral politics the property system actually had to support the electoral system. The more separate the pairing of individual and national self-determination, the more room there would be for individual self-determination, but the less room there would be for national self-determination. If individual self-determination seemed to call for a strict separation between the property system and the electoral system, then national self-determination seemed to call for a closer relationship between the two. Adding the one to the other seemed to make both subjects more intractable either because it made it more difficult to see how to deal with the ensuing causal complexity or because it increased the intensity of the accompanying moral demands and expectations. The resulting mixture of causal complexity and moral intensity led in the first half of the nineteenth century to what came to be called the social question, the national question and a proliferating array of further questions centered on Judaism, Poland, Ireland, women, class or empire.Footnote ⁴⁸

Unsurprisingly, all these questions were easier to ask than to answer. They remained, fundamentally, questions about political authorization and accountability and the still intractable problem of the relationship between the political and nonpolitical parts of society. The old distinction between the people and the nation was, therefore, still taken for granted by the Franco-Swiss political economist Jean-Charles-Léonard Simonde de Sismondi in a letter to a friend in 1814 in which he wrote that “political rights and the independence of government make peoples; language and common origin make nations. Thus, whether or not I want it, I belong to the Genevan people and the French nation.”Footnote ⁴⁹ The abiding uncertainty over the relationship between the two concepts was still visible in a book on the constitution of the Spanish monarchy and the origins of political authority that was published in 1815. “This is how nations are formed,” it announced, “and this example shows not only what should be understood by national sovereignty but also that it is located essentially in the people.”Footnote ⁵⁰ In France, the uncertainty surrounding the relationship between the two concepts merged with the rival legacies of Sieyès and Robespierre and their antagonistic identifications of the nation and the people as competing agents of authority or legitimation. Sharper distinctions and greater clarity began, however, to emerge from the German-speaking parts of Europe, first with the thought of Kant and Hegel and then with the adoption by a number of nineteenth-century French political thinkers of many of the most important features of Kant's and Hegel's assessments of Rousseau and Sieyès.

There is no need to rehearse all the details of this sequence here.Footnote ⁵¹ To Kant, Rousseau's distinction between the general will and the will of all was matched by the difference between public and private law. Here, too, the emphasis fell on government and private law because, on Kant's terms, public law had no content of its own, apart from a constitutionally defined commitment to uphold the content of private law. To Hegel, the constitutional bridge between public and private law was reinforced by the structure of the administration and, more particularly, by the financial and fiscal resources binding the various levels of administration to both civil society and the state. The outcome of this sequence was that Hegel's thought came to have something like the same pivotal presence in the nineteenth century that Rousseau's thought had occupied in the eighteenth century.Footnote ⁵² This, in part, was because of the widely recognized intellectual continuity from Rousseau to Kant and Hegel that was set out in the many examinations of their thought in the German-speaking world. But it was also because Hegel's thought provoked much the same type of bipolar reaction as had earlier been the case with Rousseau, Sieyès and Robespierre.

This further instalment of Rousseau's legacy began with a long-drawn-out discussion of Hegel and Hegelianism that ran from one end of the nineteenth century to the other. It ended, however, as the context in which the concept of a nation-state began to crystallize. The main protagonists in this discussion were Swiss, German and French, but the phrase “nation-state,” if not the concept of a nation-state, was an English-language coinage that continued to rehearse the tension between social integration and social differentiation that was the hallmark of Rousseau's thought. As the discussion developed, it began to become clear that the solution to this tension was party politics. The implications of this apparently banal realization were laid out graphically by the German Jewish political exile Leo Strauss in his review of the famous Nazi Carl Schmitt's book The Concept of the Political in 1932. Anything, Schmitt had claimed, could become political because politics, unlike economics, music, theology or physics, has no content of its own. The content of politics was, therefore, commensurate with what Schmitt called its concept, and centered, more urgently, on decision making, contingency and power. To Strauss, however, far from exposing the limitations of liberalism, Schmitt had simply identified its real foundations.Footnote ⁵³

The question of foundations was the source of the English-language term “nation-state.” The term made an initial appearance in the English translation of a book entitled The Theory of the State that was published in 1885 by Swiss German law professor and political philosopher Johann Kaspar Bluntschli, who was then teaching at the University of Heidelberg. Bluntschli's original German-language term was, however, not “nation-state” but Nationalstaat, or “national state.” From one perspective, the term was designed to be a counterconcept to Hegel's term Volkstaat, partly because it registered the reality of a unified German state more fully than was necessary in Hegel's lifetime but partly also because Bluntschli was a strong critic of Hegel's concept of bürgerliche Gesellschaft (civil society), which, Bluntschli argued, injected a fractured and divisive quality into legal and political life. To Bluntschli, the events of 1848 were real evidence of the unstable mixture of centripetal and centrifugal effects produced by the politics of civil society. In Bluntschli's rendition, and as the events of 1848 showed, Hegel's political vision led either to the anarchy of a society without a state or, in reaction, to the authority of the state at the expense of society. From another perspective, however, Bluntschli's use of the concept of a Nationalstaat was also designed to be compatible with the reality of a state made up of other states, as was the case with the United States of America and the German Reich after 1871. Just as the United States had a national or federal government alongside the governments of its constituent states, so too did Germany and, in this sense, the virtually synonymous pair formed by a national state and a federal state in an American context was matched by that between a Nationalstaat and a Bundesstaat in a German context. Bluntschli's anti-Hegelianism meant, however, that he dropped Hegel's use of the old distinction between peoples and nations to indicate the difference between the political and nonpolitical parts of society and, instead, adopted a new, strongly gendered set of terminological distinctions centered on the male and masculine attributes of the state and political society and the female and feminine attributes of the church, the family, the workshop and the other putatively nonpolitical parts of society. The distinction was designed to convey something more identifiable than the concepts of nation and people to capture the difference between the active and passive, or political and nonpolitical, parts of society, but it was probably not the best choice.

Bluntschli's English translators seem to have registered that there was something significant in his conceptual vocabulary, but they also seem to have found it difficult to settle on an effective set of English equivalents to indicate the relationship between the state and its members that Bluntschli had set out to describe. In its English-language guise, Bluntschli's term Nationalstaat was translated as a “nation-state” but, despite his objections to Hegel, Bluntschli's use of the terms Nation and Volk was given a surprisingly Hegelian inflection. “The personality of the state,” his translators wrote, “is, however, only recognised by free people, and only in the civilised nation-state has attained to full efficacy.” The modern state, they added opaquely, “is an organisation of the nation (Volk) and preserves a central unity in its authority. States are formed on a national (national) basis, and tend to become great in size.”Footnote ⁵⁴ Equivocation seems, accordingly, to have been the hallmark of the work of his translators. All of them, however, found it necessary to try to clarify the meaning of both a Nationalstaat and a Volkstaat. As one of his English translators commented, “Bluntschli himself remarked on the difference between the German and English uses of Volk and ‘people’, Nation and ‘nation’, but it will be found that he goes too far in supposing our use to be the exact converse of the German.” Other Germans, the translator pointed out, used the same words with meanings that were “the precise converse of that given by Bluntschli.”Footnote ⁵⁵ “Volkstaat,” noted the French translator of the same book in a parallel comment, “is used elsewhere to mean the opposite of a communal, urban or patrimonial state. Public state does not seem to be a satisfactory translation because how can a state not be public? But national state is an amphibology (meaning a term that is grammatically and semantically ambiguous) while popular state is an oxymoron.”Footnote ⁵⁶ It was not clear whether a Nationalstaat was single or plural.

As all his translators noted, Bluntschli seemed to have simply given up on any consistent distinction between a Volkstaat and a Nationalstaat and appeared to use both terms indiscriminately. This, however, was not because he thought that the original distinction was meaningless, but rather because he thought that the distinction had to be superseded. States, he insisted, were certainly single entities however many different interests, classes or associations they housed. This, he argued, was why the resulting combination of unity and multiplicity that was the hallmark of the modern state was best described in organic terms. Organic metaphors, he claimed, made it possible to single out and highlight the active but decentralized side of all the component parts of the life of the state in ways that could not be done as clearly and effectively by using the more causally centralized, command-oriented connotations of mechanical, physical or chemical metaphors. As with the parts of the body, all the parts of a state had a life of their own. If this was the case, then the distinction between a Volkstaat and a Nationalstaat was less important than the more fundamental question of how a state was governed because what counted was less a matter of who, ultimately, authorized the state's legal and political institution and, instead, more a matter of their capacity for independent action. Hegel's concept of civil society was, from this perspective, a distraction because it opened a door to either too much or too little state power. To Bluntschli the key to establishing the right principle was best captured by the English-language phrase “self-government.” A state could be a Nationalstaat because it governed itself, but it could also be a Volkstaat because all its local, regional or administrative parts also governed themselves. Self-government was, therefore, the real hallmark of the government of a modern state.

Self-government, Bluntschli argued, was compatible with both a Nationalstaat and a Volkstaat. Here, the relevant model was Britain, particularly as its system of government had been described by another German academic named Rudolf Gneist in 1871 in his Self Government in England. Bluntschli went to some lengths to highlight the significance and more general relevance of Gneist's examination of the British system of government in several of the entries to his own Deutsches Staats-Wörterbuch that were translated subsequently into French as La politique in 1879 and in a comparable series of English-language entries to a three-volume Cyclopaedia of Political Science, Political Economy and United States History that was published in the United States between 1881 and 1888. In addition to Gneist and his treatment of the idea of self-government, Bluntschli also went to some lengths to highlight the merits of party government. In this, he drew upon another group of publications, this time by two Swiss brothers named Friedrich and Theodor Rohmer who, Bluntschli claimed, had begun to develop a real theory of party government because they had shown how it was possible to think about the cultural and ideological side of political parties in ways that were analogous to those that enabled many different nations to add up to a single Volk or people.Footnote ⁵⁷ Parties, the Rohmer brothers had shown, were voluntary associations that were subject to involuntary forces. Their membership was voluntary, but the character of their values, whether backward- or forward-looking, present-centered or past-oriented, had a real bearing on the composition of their membership. Parties, in short, could be analysed and explained, and, by means of subtle switches in their values, could change their composition, constituencies and capabilities accordingly. To Bluntschli, party government could actually escape from division and faction as much as it was thought, standardly, to cement them.Footnote ⁵⁸

The first prerequisite of party government was a new and different theory of the state. Here too Bluntschli turned away from Hegel's three-sided distinction between the family, civil society and the state and opted instead for a division between public and private law. He also highlighted the compatibility between his concept of the state and his early training in Roman law under the supervision of the founder of German historical jurisprudence, Carl Friedrich von Savigny. “It is the special merit of the German school of historical jurists,” Bluntschli wrote early in his The Theory of the State, “to have recognised the organic nature of the nation and the state. This conception refutes both the mathematical and mechanical view of the state and the atomistic way of treating it, which forgets the whole in the individuals.”Footnote ⁵⁹ This version of the idea of an organism, he emphasized, had nothing to do with any natural capacity for production and reproduction and far more to do with the related ideas of coordinated action, internal development and external growth. Together, Bluntschli explained, all three capacities required something additional to ensure that the different attributes of a nation and a state could coexist and work together effectively. The mechanism responsible for producing this capacity was, he claimed, the law and particularly Roman law. It had this ability, Bluntschli argued, because it was the creation of a state. This, in the first instance, meant that the law was radically different from morality. For Bluntschli, the real implication of the difference was that it made it possible to establish a viable concept of the state. If the law was the medium that could bring together collective action, internal development and external growth as a differentiated combination, then the existence of the laws called, first, for the prior existence of a state and, second, for the type of state that could establish and maintain laws that met these three requirements.

In keeping with the metaphor of the state as an organism, it would, therefore, be a state with something like the attributes of a person because it would have to have a capacity to distinguish action that was lawful from action as such and, by extension, to be able to respond to different types of action in a decentralized way. This reflexive and localized capacity would be met by a constitution and, more importantly, by a constitution with a broad capacity for active citizenship. Without both, Bluntschli argued, the concept of the personality of the state would be vitiated because the resulting person would be private, not public. But, to ensure that both the constitution and the concept of active citizenship could have a stable and durable existence, the state itself would have to make provision for the welfare of its members. This too had been a Roman achievement, making “the welfare of the state the highest law (salus populi suprema lex).” It was, Bluntschli acknowledged, “a formula” that had been “used too often to excuse the arbitrary despotism either of princes or of majorities, and it has been completely discredited by the horrors of the Parisian Committee of Public Safety.” But, despite its abuse, he was still willing to accept that the Romans saw “the real function of the state in the public welfare.” On these terms, Bluntschli concluded, “the expression is really above criticism if one regards the natural limits of the state and especially the judicial order and administration, and if one avoids trespassing upon matters outside those limits, such as the free life of the individual and of religious communities.”Footnote ⁶⁰ There was, in the light of this concept of a state, a point to the name National Liberal that was given to a German political party after 1848, just as there was also a point to the word Realpolitik that at the same time became one of the buzzwords associated with the German National Liberal Party. Bluntschli endorsed both.Footnote ⁶¹

Bernard Bosanquet's The Philosophical Theory of the State was published in 1899, some fifteen years after the appearance of the English translation of Bluntschli's Theory of the State, and the obvious similarity in the titles of the two books makes it hard to resist the thought that Bosanquet's book was intended to be a more coherent and conceptually consistent counterpart to Bluntschli's book. The conceptual centerpiece of Bosanquet's book was the concept of a nation-state, the term that Bluntschli's English translators had applied to the German-language compound of a Nationalstaat. Bosanquet's adoption of the term echoed and amplified established English usage. In this usage, a nation-state was the modern equivalent of an ancient Greek polis or city-state. Like its ancient counterpart, it was a mixture of unity and diversity with, at its core, a single object of moral and political allegiance but one that was also designed to rule or oversee a specialized array of different households, activities and occupations. It was an elective version of a Greek polis or, explicitly, what Rousseau had called an elective aristocracy. The term “nation-state” itself made an initial appearance in a three-volume edition of Aristotle's Politics that was published in 1887 by the Oxford historian W. L. Newman and this Aristotelian usage soon became the basis of a comparison between the city-state and the nation-state made by the British political philosopher Henry Sidgwick in his Elements of Politics of 1891.Footnote ⁶² The connotations of both were given greater prominence in the title of a book published in 1893 by another Oxford historian, William Warde Fowler, on The City-State of the Greeks and Romans. As Fowler emphasized, his choice of title was designed both to echo, and, however, to diverge from, the title of the earlier, far better-known, La cité antique (The Ancient City) that had been published in 1864 by the famous French historian Numa-Denis Fustel de Coulanges.Footnote ⁶³ For Fustel, a cité was simply the French-language equivalent of the Latin civitas or state. For Fowler, however, drawing upon Newman's commentary on Aristotle, there was a point to the compound quality of the noun “city-state” and the difference from a civitas, cité or state that the compound implied. Where Fustel's cité began with a common religion and a common worship of the sun, Fowler's city-state began with decentralized settlements and dispersed communities and an initial concern with common administration and the rule of law. Nations, in Fowler's rendition, could be distinguished from states more readily than in Fustel's rendition because the nation-state distinction made it possible to capture rather more of the Aristotelian distinction between an oikos or household and a polis or state as the basis of a genuinely self-standing political society.

The distinction was the basis of Bosanquet's concept of a nation-state. Although Bosanquet is usually taken to be a British Hegelian, and he certainly made no secret of his respect and admiration for Hegel's thought, his concept of a nation-state placed far less emphasis on the law, the administration, the market, civil society and the financial system than Hegel had done in his Philosophy of Right.Footnote ⁶⁴ “In a certain sense,” Bosanquet wrote in The Philosophical Theory of the State, “it would be true to say that wherever men have lived there has always been a ‘State’. That is to say, that there has been some association or corporation, larger than the family, and acknowledging no power superior to itself.” But, he continued, this generic concept of a state failed to capture the quality of what he called “true political experience,” meaning the awareness of “the nature and value of the community in which man finds himself a member.” This type of experience, he asserted, “has been awakened and sustained principally if not exclusively by two kindred types of associated life—the City-State of ancient Greece and the Nation-State of the modern world.”Footnote ⁶⁵ This was because both types of association called for a “political consciousness in the strict sense” as “a necessary factor in the experience of such a commonwealth.” The basis of this political consciousness was a combination of “autonomy—government by one's own law” and “isonomy—government according to equal law.” The Greeks, in addition, had also invented the “very instrument of all political action.” This was majority rule or, as Bosanquet put it, the “simple device by which an orderly vote is taken, and the minority acquiesce in the will of the majority as if it had been their own—an invention no less definite than that of the lever or the wheel—is found for the first time as an everyday method of decision in Greek political life.”Footnote ⁶⁶

The city-state gave rise, accordingly, to a certain cast of mind formed by the combination of self-government, rationality and active involvement in political life that was the hallmark of ancient Greek society. It was this combination that was the real basis of Aristotle's definition of humanity as a zoōn politikon or, as Bosanquet put it, “a creature formed for the life of a city-state.” Although, he continued, the phrase belonged to Aristotle, the idea belonged to Plato and was now as salient to a nation-state as it once had been to a city-state. There is, Bosanquet concluded, “no sound political philosophy which is not an embodiment of Plato's conception. The central idea is this: that every class of persons in the community—the statesman, the soldier, the workman—has a distinctive type of mind which fits its members for their functions, and that the community essentially consists in the working of these types of mind in their connection with one another, which connection constitutes their subordination to the common good.”Footnote ⁶⁷ From this perspective, Bosanquet's concept of a nation-state was a heavily moralized version of Hegel's concept of civil society. It was civil society merged with a state.

The result, however, was not a single entity, but something comparable to the earlier distinctions between the will of all and the general will, between private law and public law, and between civil society and the state, that had been made by Rousseau, Kant and Hegel. As Bosanquet emphasized, the concept of a nation-state called for the coexistence of two wills rather than one. There were the many wills of all the various members of the nation, but there was also the single will of the state itself. Together, the coexistence of these two different types of will—one single and the other plural—was the basis of a nation-state, or a single entity made up of two parts. Bosanquet explained how these two wills could coexist in terms of what he called the paradox of obligation. “In the conception of self-government,” he wrote, “we have the paradox of obligation in its purest form.”Footnote ⁶⁸ To individuals, it took the form of a “paradox of ethical obligation,” because it was not clear how or why individuals could maintain obligations to themselves. New Year's resolutions, to use one obvious example, do not last long. To a society, it took the form of “the paradox of political obligation” because it was not clear how two separate individuals could both be autonomous but each be obliged to one another. Solving this latter paradox, Bosanquet claimed, made it possible to show that the idea of self-government could be separated both analytically and practically from the problem of the tyranny of the majority. The coexistence of two wills within one nation-state made it possible to circumvent both problems. The real will of the state would anchor the wills of both its individual and social components to their individual and social commitments. The nation-state, he claimed, was a real home for self-government.

Bosanquet's theory of the nation-state never really recovered from the vicious attack on it made in 1918 by Leonard Hobhouse in his The Metaphysical Theory of the State. Hobhouse's assault was matched, in France, by the larger and more protracted attack on the related concepts of sovereignty and the state by the French jurist Léon Duguit. For both, states were indistinguishable from empires, and states and empires were synonyms for imperialism and war. But, as Quentin Skinner has pointed out, the existence of things like public debts (and, it could be added, legal, fiscal and financial systems) make it hard to avoid recognizing the fact that modern political societies have two parts.Footnote ⁶⁹ Debts, like laws and currencies, belong to states, even if they are created, incurred or made by governments. They can, of course, be national debts, national laws or national taxes but, as with the original distinction between nations and peoples as authorizing agents, the indeterminacy of the nomenclature does not eliminate the reality of the distinction. In this early twentieth-century setting, however, Rousseau continued to supply a further set of conceptual resources, buttressed here by Hegel. Some fifty or sixty years after Rousseau's death, Hegel had announced, in one of his Lectures on the History of Philosophy published posthumously in 1836, “that the principle of freedom emerged in Rousseau” and, he added, it was also the principle that “gave rise to the transition to the Kantian philosophy.”Footnote ⁷⁰ Thought, Hegel stated in a later lecture, “apprehended as concrete, as determining itself,” was the “recognition of freedom” and, he continued, Rousseau “had already affirmed this absolute quality of freedom” while Kant had posited the same principle from a “more theoretical angle.”Footnote ⁷¹ Two generations later, in 1887, Hegel's initial announcement was quoted in a long footnote that was inserted into the third edition of a history of political science and its relation to morality by a French philosopher named Paul Janet, a follower of the more famous philosopher and critical, but sympathetic, admirer of Hegel, Victor Cousin (Janet's assessment of Hegel was, in fact, very similar to Cousin's). In the note, Janet picked out seven passages from Rousseau's Social Contract that, Janet claimed, explained how and why the concepts of the general will and the will of all were connected to the principle of freedom that, as Hegel had described it, had emerged in Rousseau and had supplied the transition to the Kantian philosophy.Footnote ⁷²

This way of thinking about Rousseau's legacy was carried through from Janet's book to a pair of articles entitled “L'alternance des moyen-âges et des renaissances et ses conséquences sociales” (The Alternation of the Middle Ages and Renaissances and Its Social Consequences”) and “Le régime d’état” (“The State Regime”) that were published respectively in 1895 and 1904 by an unusually gifted French law professor and legal theorist named Maurice Hauriou.Footnote ⁷³ In the latter article, in particular, Hauriou made a point of highlighting the tension between what he called the property regime and the electoral regime that, he argued, was a feature of Rousseau's thought. It was, he wrote, “paradoxical or almost mad” for laws, meaning “the foundation itself of the state regime,” to be the product of the “electoral game.” But this, in fact, was what they were. Everything in modern politics seemed to be up for grabs. To Hauriou, however, the fact that everything, in principle, really was up for grabs helped to highlight the gap between the dizzying possibilities of an election and the underlying continuities of everyday life. Majority rule still, apparently, required the sanction of ordinary life. This, Hauriou argued, was why it was vital to separate the electoral regime from the property regime and start to work out the reasons that enabled the two to coexist.Footnote ⁷⁴ This description of Rousseau's thought, which seems to have been a centerpiece of Hauriou's various lecture courses on Rousseau in the 1890s, was repeated in an article on “La notion de personnalité morale chez Rousseau” published in 1902 by a now largely forgotten French jurist and legal historian named Achille Mestre, who was also one of Hauriou's former students. It could be found too in a thick book by another French jurist and legal historian named Léon Michoud entitled La théorie de la personnalité morale et son application au droit français (The Theory of Moral Personality and Its Application to French Law) that was published in 1906. It is possible that these two later publications also owed something to the broader recognition of the continuities from Rousseau to Kant and Hegel that were described very fully and thoroughly by the Austro-German legal historian and political theorist Georg Jellinek in his two-volume study of law and the modern state (Allgemeine Staatslehre) that was published in 1900 and began to be translated into French three years later.Footnote ⁷⁵ By then, however, the problematic relationship between the concepts of individual and national self-determination that had supplied much of the continuity running from Rousseau to Kant and Hegel and then to the two publications by Bluntschli and Bosanquet had begun to disappear from historical view.

This loss of historical perspective has made it difficult to see the real analytical point of the concept of the nation-state. One example of the effect of the resulting historical and historiographical amnesia can be found in an article entitled “The Discredited State: Thoughts on Politics before the War” that was written shortly before the beginning of the First World War by the Oxford, and later Cambridge, historian Ernest Barker. On the basis of its title, the article looks as if it is about the state, which is why it has come to be taken as an attack on state sovereignty and a defence of group rights, the politics of pluralism and the thought of a host of early twentieth-century moral and political thinkers from Otto von Gierke to Fredrick Maitland and Léon Duguit. In fact, it was an article about public debt and the credit of the state, as well as the state itself. As Barker's choice of title was really designed to show, the article was written to highlight the possibility of what could happen if, in a more literal sense, a state really was discredited. “In the uses of my private income,” Barker wrote in conclusion,

It was a very vivid illustration of the two-sided nature of the modern state and the precarious balance involved in maintaining the respective qualities of each of the two sides.

There was, in short, no final outcome for the combination of individual and national self-determination. If Jellinek's insistence on the two-sided nature of the state was designed explicitly to echo the line of thought running from Rousseau to Kant and Hegel, it still did not fully register the deep-seated political ambiguity surrounding the concepts of the people and the nation as something more than a pair of alternative names given to the agents of political authorization and legitimation. Behind the ambiguity there was the deeper question whether one or other side of the pair was better integrated with, or differentiated from, the other. The question once even encompassed the now discredited notion of the idea of a state as an organism. To Bluntschli, the organic metaphor captured the differentiated quality of the institutions and arrangements of a modern state. To his critics, like Otto von Gierke and his French admirer Léon Duguit, the same metaphor captured the integrated quality of something corporate whose single personality and capacity to will and to take responsibility were given to it by the combined action of its human members.Footnote ⁷⁷ Here too, both versions of the metaphor could be taken to be valid. In this sense, the concept of the nation-state underlined the absence of any unequivocal answer to the question. At different times and for different reasons, either answer could apply. Deciding on which answer was valid was, pace Carl Schmitt, certainly a decision but, as Leo Strauss pointed out, judgments and decisions were what gave liberal politics their nature. Integration could trump differentiation or vice versa, but without the real possibility of either outcome the concept of a nation-state would lose its political character. From this perspective, the revealed mystery of the nation-state was party politics and the range of institutions and arrangements that have come to make party politics happen. As Bluntschli, Bosanquet and Hauriou pointed out in their different assessments of Rousseau's intellectual legacy, quite a lot can be at stake in both party politics and the politics of the nation-state.