No CrossRef data available.
Article contents
Problems of the Liberal-Democratic State: An Historical Overview
Published online by Cambridge University Press: 28 March 2014
Extract
Revisionist opinion notwithstanding, in my view the Roman empire in the West really did collapse, the European Dark Ages really were dark, and the feudal regna which painfully emerged from them were not ‘states’ in the sense of the term that we use today. A thousand years had to elapse after the fall of Rome for what we nowadays call ‘the modern European state’ to appear. I would like to stress that Europe did not, as some persons have maintained, invent ‘the state’. Europe re-inuented it after that long period of breakdown, followed by near-anarchy and then feudalism; but what it re-invented was in many respects unlike any antecedent — or contemporary — state-form anywhere else in the world. This state-form has now become the world-wide unit of affairs. It was original in three major respects.
- Type
- Articles
- Information
- Copyright
- Copyright © Government and Opposition Ltd 1990
References
1 See. e.g. Jolliffe, J. E. A., The Constitutional History of Medieval England, London, Black 1937. pp. 59–61.Google Scholar
2 The matter is mentioned in Weber, M., Economy and Society (ed. by Roth, G. and Wittich, C.), 2 vols, University of California Press, 1978., Vol. II, pp. 710–13Google Scholar, and the critical and bibliographical notes to these pages, at pp. 747–49.
3 See the previous note for references. In the English case Holdsworth, Vol. IX, pp. 11ff. is particularly valuable. Street, H., Governmental Liability, Cambridge University Press 1953 Google Scholar, Chapter 1 is a most useful historical summary of the entire matter. For all the comments of Roth and Wittich, mentioned in the previous note, it is clear that it was much more difficult to get a remedy against the Crown in England than they suggest. Germany adopted the Roman law distinction between fiscus and the government quite early, and no doubt this lies at the root of the famous story of Frederick II and the windmill at Sans Souci. It rattled so noisily that he ordered it to be pulled down; but the miller, in a rage, shook his fist shouting ‘Your Majesty, there are still judges in Prussia’. Though it is a fable, it does attest to the sentiment that you could indeed get justice against the state in Prussia. ( Hubatsch, W., Frederick the Great, Thames & Hudson, 1975, p. 211)Google Scholar. France seems to have been the most recalcitrant in allowing personal actions against state agents and put every obstacle in their way. A vivid picture is drawn by de Tocqueville, , L’Ancien Regime, Oxford University Press, 1957 Google Scholar, in his chapter on ‘Administrative Justice’. But cf. Street, op. cit., p. 15.
4 See, inter alia: Mousnier, R. C., The Institutions of France, 1598–1789, Chicago University Press, 1979, pp. 659–65Google Scholar which contains the relevant passages from Bodin and L’Oyseau. For a perceptive commentary on the meaning of absolutism and sovereignty at this time cf. de Jouvenel, B., Sovereignty, Cambridge University Press, 1957 Google Scholar, Chapter 11.
5 For the Ch’ing period, see Bodde, D. and Morris, C., Law in Imperial China, Harvard University Press, 1967 CrossRefGoogle Scholar, esp. the Introduction. For earlier periods, Johnson, W., The T’ang Code: Vol. 1. The General Principles, Princeton University Press, 1979 Google Scholar; Hulsewé, A. F. P., Remnants of Hun Law, Vol. I, Leiden, Brill, 1955 Google Scholar. For Henderson, Japan, D. F., ‘The Evolution of Tokugawa Law’, in Hall, J. W. and Jansen, M. B. (eds), Studies in the Institutional History of Early Modern Japan, Princeton University Press, 1968, pp. 203–29Google Scholar; Henderson, I., Conciliation and Japanese Law, University of Washington Press, 1965.Google Scholar
6 The K’ang-Hsi Emperor issued an edict in 1692 ordering the magistrates to make their courts so dreaded that the people would not take their quarrels there ( Van der Sprinkel, S., Legal Institutions in Manchu China, London, Athlone Press, 1962, pp. 76–77)Google Scholar. For the criminalization of helping litigants, see Bodde/Morris op. cit., pp. 413 – 17.
7 In China these institutions were (police) the li-chia and (taxes) the pao-chia. In Japan the (police) unit was the goningumi. For the extension of punishments to entire families etc see the literature cited above, passim.
8 It is only fair to say that the influence of Confucianist morality, as projected by the emperor’s senior ministers and the bureaucracy, was sometimes so suffocating as to reduce the Chinese emperor to political passivity. That an emperor ought be passive and confine himself merely to picking good ministers was one highly influential (because self-serving) strand in the Confucianist canon. The Ch’ing emperors were themselves Confucianists but they were active and brooked no such interference as just described.
9 Cf, e.g. Schacht, J., An Introduction to Islamic Law, Oxford, 1982, p. 54; pp. 86 ff.; p. 187Google Scholar.
10 Kedourie, E., ‘Crisis and Revolution in Modern Islam’, Times Literary Supplement, 05 19–25, 1989, p. 549 Google Scholar. Al-Mawardi, d. 1058, Baghdad (The Ordinances of Government) was one of the most influential exponents.
11 For Islam see Watt, W. M., Islamic Political Thought, Edinburgh University Press, 1968, pp. 96–7Google Scholar.
12 Hall, J. and Jansen, M., Studies in the Institutional History of Early Modern Japan, Princeton N.J., 1968, pp. 214 and 215 Google Scholar.
13 This view, stressing the virtual absence of courts of law in Tokugawa Japan and the despotic powers of its authorities has been expressed strongly by J. R. Strayer, in Hall/Jansen op. cit., pp. 7–8. Note his contrast between the European Middle Ages with its ‘authority based on law’ and Japanese authoritarianism; and his statement that ‘nothing in the religion, the mores, the political theories, or the habits of thought of the [Japanese] people justifies resistance’, whereas in Europe ‘the symbol of authority was the right to hold a court’.
14 Bodin called the former ‘seignorial monarchy’ and the latter ‘tyrannical monarchy’.
15 I do not know any short book that expresses this with greater elegance, clarity and authority than Southern, R. W., Western Society and the Church in the Middle Ages, Penguin, 1970 Google Scholar.
16 To take just one, but conspicuous example,—the French Huguenots in Neale, J. E., The Age of Catherine de Medici, London, Jonathan Cape, 1963, pp. 11–29 Google Scholar.
17 So too, Robert Browning’s poem, The Bishop Orders His Tomb al St Praxed’s Church.
18 In Japan no man could serve two lords, nor could the lord of one han be the vassal of the lord of another han. Both were permitted and prevalent in Europe hence the trans-territoriality.
19 The classic Chinese work is the Chan-kuo-tse (‘Ways of the Warring States’), tr. Crump, J. I., 2nd Ed. revised, San Francisco, Chinese Materials Centre, 1979 Google Scholar. See Walker, R. L., The Multi-state System of Ancient China, Hampden, Conn., Shoestring Press, 1953 Google Scholar. Ping, Ching and Bloodworth, Dennis, The Chinese Machiavelli, London, Secker & Warburg, 1976 Google Scholar is also of interest.
20 The term ‘country-state’ was the one used by Henry Sidgwick in his Development of the European Polity, London, 1906, in contradistinction to ‘city-states’. I use it in order to avoid the two misleading alternatives which are in common use today. One is ‘national’ state; this denotation may well be anachronistic or positively false—as in the case of a multinational state. The other, which attempts to get out of this difficulty, is to call these new states ‘territorial’. Well, of course they are: the term ‘territorial’ stands as the contradictory of ‘feudal’ (which is trans-territorial). A country-state is a state that is situated in and named after a country, irrespective of whether it is inhabited by one nation or several nations or even by tribesmen. Thus Transylvania in the sixteenth—seventeenth centuries was a country-state because it was named after that region, but contained Magyars and Romanians and other ethnic groups. I admit the term is infelicitous but I have been able to find no alternative. At least it does not beg any questions.
21 The exceptions were Vizcaya, Guipézcoa and élava, inhabited by the Basques, and Catalonia; in none is the native language Castilian.
22 Sieỳs, E. J., What is the Third Estate?, ed. Finer, S. E., London, Pall Mall, 1963 Google Scholar, passim, but cf., for instance: ‘The nation is prior to everything. It is the source of everything. Its will is always legal; indeed it is the law itself, ibid., p. 124; Where is the nation to be found? Where it is; in the 40,000 parishes which embrace the whole territory, all its inhabitants and every element of the commonwealth; indisputably the nation lies there’, ibid., p. 133. The proposition is most succinctly put in another text, and runs: ‘All the public authorities, without distinction, are an emanation of the general will; all come from the people, that is to say—from the nation’, ibid., p. 17.
23 Popular Government, London, Macmillan, 1885, p. 185.
24 Galatians, III, 28.
25 Quoted in Bettenson, H., Documents of the Christian Church, Oxford University Press, 1943, pp. 379–81Google Scholar.
26 See, for instance, his Nouveaux Principes d’économie Politique, Geneva and Paris, edition Jeheber, 2 vols, 1951.
27 Paris, Recueil Sirey, 2 Vols, 1920, Chapter 1.