Discovering the State

If we look in the wrong place for the public we shall never locate the state. If we do not ask what are the conditions which promote and obstruct the organization of the public into a social group with definite functions, we shall never grasp the problem involved in the development and transformation of states. If we do not perceive that this organization is equivalent to the equipment of the public with official representatives to care for the interests of the public, we shall miss the clew to the nature of government. These are conclusions reached or suggested by the discussion of the last hour. The wrong place to look, as we saw, is in the realm of alleged causal agency, of authorship, of forces which are supposed to produce a state by an intrinsic vis genetrix. The state is not created as a direct result of organic contacts as offspring are conceived in the womb, nor by direct conscious intent as a machine is invented, nor by some brooding indwelling spirit, whether a personal deity or a metaphysical absolute will. When we seek for the origin of states in such sources as these, a realistic regard for facts compels us to conclude in the end that we find nothing but singular persons, you, they, me. We shall then be driven, unless we have recourse to mysticism, to decide that the public is born in a myth and is sustained by superstition.

If we look in the wrong place for the public, we will never find the state. We must ask what conditions help or hinder the public in organizing into a social group with specific functions. Otherwise, we will never understand the problem of how states develop and change. Organizing the public means providing official representatives to look after the public’s interests. Unless we recognize this, we will miss the key to understanding government. These conclusions were reached or suggested in the discussion of the last hour. As we saw, the wrong approach is to look for some supposed cause or creator of the state. This approach assumes that certain forces produce a state through an inherent power to generate. The state does not arise directly from organic contact, as offspring are conceived in the womb. Nor does the state arise from a direct, conscious intention, as a machine is invented. Nor is the state created by some spirit dwelling within and watching over it. Such a spirit might be a personal deity or a metaphysical absolute will. When we seek the origins of states in these sources, an honest look at the facts forces a conclusion. In the end, we find only individual people: you, them, me. Unless we turn to mysticism, we will then be forced to decide that the public originates in myth and survives through superstition.

There are many answers to the question: What is the public? Unfortunately many of them are only restatements of the question. Thus we are told that the public is the community as a whole, and a-community-as-a-whole is supposed to be a self-evident and self-explanatory phenomenon. But a community as a whole involves not merely a variety of associative ties which hold persons together in diverse ways, but an organization of all elements by an integrated principle. And this is precisely what we are in search of. Why should there be anything of the nature of an all-inclusive and regulative unity? If we postulate such a thing, surely the institution which alone would answer to it is humanity, not the affairs which history exhibits as states. The notion of an inherent universality in the associative force at once breaks against the obvious fact of a plurality of states, each localized, with its boundaries, limitations, its indifference and even hostility to other states. The best that metaphysical monistic philosophies of politics can do with this fact is to ignore it. Or, as in the case of Hegel and his followers, a mythical philosophy of history is constructed to eke out the deficiencies of a mythical doctrine of statehood. The universal spirit seizes upon one temporal and local nation after another as the vehicle for its objectification of reason and will.

There are many answers to the question: What is the public? Unfortunately, many answers merely repeat the question in different words. We are told, for example, that the public is the community as a whole. This community as a whole is then treated as something obvious that explains itself. But a community as a whole involves more than various social ties that connect people in different ways. It also requires all its elements to be organized around a unifying principle. And that is exactly what we are trying to find. Why should there be any unity that includes and governs everything? If we assume such a unity exists, surely only humanity would fit that description, not the states found in history. The idea that the force drawing people together is inherently universal immediately runs up against an obvious fact. There are many states, each in a particular place, with its own boundaries and limitations. Each is indifferent or even hostile to other states. Political philosophies that explain everything through a single underlying unity can do no better than ignore this fact. Or, as with Hegel and his followers, they construct a mythical philosophy of history. This myth makes up for the shortcomings of a mythical theory of the state. The universal spirit takes hold of one nation after another, each belonging to a particular time and place. It uses each nation as a vehicle for giving concrete form to reason and will.

Such considerations as these reinforce our proposition that the perception of consequences which are projected in important ways beyond the persons and associations directly concerned in them is the source of a public; and that its organization into a state is effected by establishing special agencies to care for and regulate these consequences. But they also suggest that actual states exhibit traits which perform the function that has been stated and which serve as marks of anything to be called a state. Discussion of these traits will define the nature of the public and the problem of its political organization, and will also operate to test our theory.

These considerations support our claim that a public arises when people recognize certain consequences. These consequences extend in important ways beyond the people and associations directly involved. A public becomes organized into a state by establishing special agencies to manage and regulate these consequences. But these considerations also suggest that existing states share certain features. These features perform the function just described and identify anything that can be called a state. Discussing these features will clarify the nature of the public and the problem of organizing the public politically. This discussion will also test our theory.

We can hardly select a better trait to serve as a mark and sign of the nature of a state than a point just mentioned, temporal and geographical localization. There are associations which are too narrow and restricted in scope to give rise to a public, just as there are associations too isolated from one another to fall within the same public. Part of the problem of discovery of a public capable of organization into a state is that of drawing lines between the too close and intimate and the too remote and disconnected. Immediate contiguity, face to face relationships, have consequences which generate a community of interests, a sharing of values, too direct and vital to occasion a need for political organization. Connections within a family are familiar; they are matters of immediate acquaintance and concern. The so-called blood-tie which has played such a part in demarcation of social units is largely imputed on the basis of sharing immediately in the results of conjoint behavior. What one does in the household affects others directly and the consequences are appreciated at once and in an intimate way. As we say, they “come home.” Special organization to care for them is a superfluity. Only when the tie has extended to a union of families in a clan and of clans in a tribe do consequences become so indirect that special measures are called for. The neighborhood is constituted largely on the same pattern of association that is exemplified in the family. Custom and measures improvised to meet special emergencies as they arise suffice for its regulation.

We can hardly find a better sign of a state’s nature than the feature just mentioned: its location in time and space. Some associations are too narrow and limited in scope to give rise to a public. Just as some are too isolated from one another to belong to the same public. Part of identifying a public capable of organizing into a state involves drawing boundaries. These boundaries separate relationships that are too close and intimate from those that are too distant and disconnected. Close contact and face-to-face relationships create shared interests and values. These shared interests and values are too direct and vital to create a need for political organization. Relationships within a family are familiar, based on direct knowledge and concern. The so-called blood-tie has played a major role in defining social groups. This tie is largely assumed because people directly share in the results of acting together. What someone does in the household affects others directly, and those affected recognize the consequences immediately and intimately. As we say, they “come home.” No special organization is needed to deal with these consequences. Only when the tie extends to families united in a clan, and clans in a tribe, do consequences become so indirect that special measures are needed. The neighborhood largely follows the same pattern of association as the family. Custom and measures devised to meet particular emergencies as they arise are enough to regulate neighborhood life.

Consider the village in Wiltshire so beautifully described by Hudson: “Each house has its center of human life with life of bird and beast, and the centers were in touch with one another, connected like a row of children linked together by their hands; all together forming one organism, instinct with one life, moved by one mind, like a many-colored serpent lying at rest, extended at full length upon the ground. I imagined the case of a cottager at one end of the village occupied in chopping up a tough piece of wood or stump and accidentally letting fall his heavy sharp axe on to his foot, inflicting a grievous wound. The tidings of the accident would fly from mouth to mouth to the other extremity of the village, a mile distant; not only would each villager quickly know of it, but have at the same time a vivid mental image of his fellow villager at the moment of his misadventure, the sharp glittering axe falling on to his foot, the red blood flowing from the wound; and he would at the same time feel the wound in his own foot and the shock to his system. In like manner all thoughts and feelings would pass freely from one to another, though not necessarily communicated by speech; and all would be participants in virtue of that sympathy and solidarity uniting the members of a small isolated community. No one would be capable of a thought or emotion which would seem strange to the others. The temper, the mood, the outlook of the individual and the village, would be the same.”¹ With such a condition of intimacy, the state is an impertinence.

Consider the village in Wiltshire so beautifully described by Hudson: “Each house is a center of human life, alongside the life of birds and animals. These centers were connected like a row of children holding hands. Together they formed one organism, alive with a single life and moved by a single mind. They were like a many-colored serpent resting on the ground, stretched out to its full length. I imagined a cottager at one end of the village chopping a tough piece of wood or a stump. He accidentally drops his heavy, sharp axe onto his foot, causing a severe wound. News of the accident would pass from person to person to the village’s other end, a mile away. Not only would every villager quickly hear the news, but each would vividly picture his neighbor’s accident. Each would see the sharp, glittering axe falling onto the foot and the red blood flowing from the wound. At the same time, each would feel the wound in his own foot and the shock through his body. In the same way, all thoughts and feelings would pass freely from person to person, though not necessarily through speech. Everyone would share in them through the sympathy and solidarity uniting the members of a small, isolated community. No one could have a thought or emotion that would seem strange to the others. The individual and the village would share the same temperament, mood, and outlook.”¹ With such intimacy, the state is an unwelcome intrusion.

For long periods of human history, especially in the Orient, the state is hardly more than a shadow thrown upon the family and neighborhood by remote personages, swollen to gigantic form by religious beliefs. It rules but it does not regulate; for its rule is confined to receipt of tribute and ceremonial deference. Duties are within the family; property is possessed by the family. Personal loyalties to elders take the place of political obedience. The relationships of husband and wife, parent and children, older and younger children, friend and friend, are the bonds from which authority proceeds. Politics is not a branch of morals; it is submerged in morals. All virtues are summed up in filial piety. Wrongdoing is culpable because it reflects upon one’s ancestry and kin. Officials are known but only to be shunned. To submit a dispute to them is a disgrace. The measure of value of the remote and theocratic state lies in what it does not do. Its perfection is found in its identification with the processes of nature, in virtue of which the seasons travel their constant round, so that fields under the beneficent rule of sun and rain produce their harvest, and the neighborhood prospers in peace. The intimate and familiar propinquity group is not a social unity within an inclusive whole. It is, for almost all purposes, society itself.

For long periods of human history, especially in the Orient, the state is hardly more than a shadow over family and neighborhood. That shadow is cast by distant figures, whom religious beliefs make seem gigantic. The state rules but does not regulate, for its rule extends only to collecting tribute and receiving ceremonial respect. Duties lie within the family, and property belongs to the family. Personal loyalty to elders takes the place of political obedience. Authority comes from the bonds between husband and wife, parents and children, older and younger children, and friends. Politics is not a branch of morality. It is swallowed up in morality. All virtues come down to devotion to parents and ancestors. Wrongdoing deserves blame because it reflects badly on one’s ancestors and relatives. People know of officials, but only to avoid them. Bringing a dispute before officials is a disgrace. The value of the distant, religiously governed state lies in what it does not do. The state reaches perfection when it becomes one with the processes of nature. Through these processes, the seasons follow their regular cycle. Sun and rain nurture the fields so that they yield their harvests, and the neighborhood prospers in peace. The close-knit group of people who live near one another is not a social unit within a larger whole. For almost all purposes, that group is society itself.

At the other limit there are social groups so separated by rivers, seas and mountains, by strange languages and gods, that what one of them does—save in war—has no appreciable consequences for another. There is therefore no common interest, no public, and no need nor possibility of an inclusive state. The plurality of states is such a universal and notorious phenomenon that it is taken for granted. It does not seem to require explanation. But it sets up, as we have noted, a test difficult for some theories to meet. Except upon the basis of a freakish limitation in the common will and reason which is alleged to be the foundation of the state, the difficulty is insuperable. It is peculiar, to say the least, that universal reason should be unable to cross a mountain range and objective will be balked by a river current. The difficulty is not so great for many other theories. But only the theory which makes recognition of consequences the critical factor can find in the fact of many states a corroborating trait. Whatever is a barrier to the spread of the consequences of associated behavior by that very fact operates to set up political boundaries. The explanation is as commonplace as is the thing to be explained.

At the other extreme, some social groups are separated by rivers, seas, mountains, unfamiliar languages, and unfamiliar gods. Except in war, the actions of one group have no noticeable consequences for another. So there is no common interest, no public, and neither a need nor a possibility for a state encompassing them. The existence of many states is so widespread and well known that people take it for granted. It seems to need no explanation. But as we have noted, it presents a test that some theories find difficult to pass. Some theories claim that a common will and reason form the foundation of the state. Those theories cannot explain the existence of separate states unless they assume some bizarre limit on that will and reason. It is odd, to say the least, that universal reason cannot cross a mountain range. It is equally odd that a river current should block objective will. Many other theories face less difficulty. But only a theory centered on recognizing consequences can find support in the existence of many states. Anything that blocks the spread of consequences from people acting together thereby helps establish political boundaries. The explanation is as ordinary as the fact it explains.

Somewhere between associations that are narrow, close and intimate and those which are so remote as to have only infrequent and casual contact lies, then, the province of a state. We do not find and should not expect to find sharp and fast demarcations. Villages and neighborhoods shade imperceptibly into a political public. Different states may pass through federations and alliances into a larger whole which has some of the marks of statehood. This condition, which we should anticipate in virtue of the theory, is confirmed by historical facts. The wavering and shifting line of distinction between a state and other forms of social union is, again, an obstacle in the way of theories of the state which imply as their concrete counterpart something as sharply marked off as is the concept. On the basis of empirical consequences, it is just the sort of thing which should occur. There are empires due to conquest where political rule exists only in forced levies of taxes and soldiers, and in which, though the word state may be used, the characteristic signs of a public are notable for their absence. There are political communities like the city-states of ancient Greece in which the fiction of common descent is a vital factor, in which household gods and worship are replaced by community divinities, shrines, and cults: states in which much of the intimacy of the vivid and prompt personal touch of the family endures, while there has been added the transforming inspiration of a varied, freer, fuller life, whose issues are so momentous that in comparison the life of the neighborhood is parochial and that of the household dull.

The scope of a state, then, lies somewhere between close, intimate associations and distant ones with only occasional, casual contact. We do not find clear, fixed boundaries, and we should not expect them. Villages and neighborhoods blend gradually into a political public. Different states may join through federations and alliances into a larger whole with some features of statehood. The theory leads us to expect these blurred boundaries, and historical facts confirm them. Again, the shifting boundary between a state and other social unions poses a problem for some theories of the state. These theories imply that an actual state has boundaries as clear as those of the concept itself. But if we judge by observable consequences, blurred boundaries are exactly what we should expect. Some empires arise through conquest, and political rule in them consists only of forcibly collecting taxes and recruiting soldiers. Although the word state may be used, the usual signs of a public are strikingly absent. There are also political communities like the city-states of ancient Greece, where the fiction of shared ancestry plays a vital role. In these communities, household gods and worship give way to community gods, shrines, and religious practices. Such states retain much of the family's intimacy, with its lively, immediate personal contact. Yet they also offer the transforming inspiration of a more varied, freer, fuller life. The concerns of this life are so momentous that neighborhood life seems narrow by comparison, and household life dull.

Multiplicity and constant transformation in the forms which the state assumes are as comprehensible upon the hypothesis proposed as is the numerical diversity of independent states. The consequences of conjoint behavior differ in kind and in range with changes in “material culture,” especially those involved in exchange of raw materials, finished products and above all in technology, in tools, weapons and utensils. These in turn are immediately affected by inventions in means of transit, transportation and intercommunication. A people that lives by tending flocks of sheep and cattle adapts itself to very different conditions than those of a people which ranges freely, mounted on horses. One form of nomadism is usually peaceful; the other warlike. Roughly speaking, tools and implements determine occupations, and occupations determine the consequences of associated activity. In determining consequences, they institute publics with different interests, which exact different types of political behavior to care for them.

The proposed explanation makes sense of the many, constantly changing forms of the state, just as it explains the existence of many independent states. The effects of people acting together vary in kind and reach as “material culture” changes. Especially important are changes in the exchange of raw materials and finished products, and above all in technology, tools, weapons, and utensils. These, in turn, are directly affected by inventions in travel, transportation, and communication. A people living by tending sheep and cattle adapts to very different conditions from a people roaming freely on horseback. One form of nomadic life is usually peaceful, the other warlike. Broadly speaking, tools and equipment determine occupations, and occupations determine the effects of people acting together. By determining these effects, tools and equipment create publics with different interests. Those interests demand different kinds of political action to address them.

In spite of the fact that diversity of political forms rather than uniformity is the rule, belief in the state as an archetypal entity persists in political philosophy and science. Much dialectical ingenuity has been expended in construction of an essence or intrinsic nature in virtue of which any particular association is entitled to have applied to it the concept of statehood. Equal ingenuity has been expended in explaining away all divergencies from this morphological type, and (the favored device) in ranking states in a hierarchical order of value as they approach the defining essence. The idea that there is a model pattern which makes a state a good or true state has affected practice as well as theory. It, more than anything else, is responsible for the effort to form constitutions offhand and impose them ready-made on peoples. Unfortunately, when the falsity of this view was perceived, it was replaced by the idea that states “grow” or develop instead of being made. This “growth” did not mean simply that states alter. Growth signified an evolution through regular stages to a predetermined end because of some intrinsic nisus or principle. This theory discouraged recourse to the only method by which alterations of political forms might be directed: namely, the use of intelligence to judge consequences. Equally with the theory which it displaced, it presumed the existence of a single standard form which defines the state as the essential and true article. After a false analogy with physical science, it was asserted that only the assumption of such a uniformity of process renders a “scientific” treatment of society possible. Incidentally, the theory flattered the conceit of those nations which, being politically “advanced,” assumed that they were so near the apex of evolution as to wear the crown of statehood.

Political forms vary rather than follow a uniform pattern. Yet political philosophy and science still treat the state as an ideal entity. Much clever reasoning has gone into defining an essence or inner nature that qualifies any particular association as a state. Just as much ingenuity has gone into explaining away all departures from this basic type. The favored approach has been to rank states by value according to how closely they match the defining essence. The idea of a model that makes a state a good or true state has shaped practice as well as theory. More than anything else, this idea has prompted efforts to draft constitutions hastily and impose them ready-made on peoples. Unfortunately, when people recognized this view as false, they replaced it with the idea that states “grow” rather than being made. This “growth” did not simply mean that states change. Growth meant evolution through regular stages toward a predetermined goal, driven by some inner impulse or principle. This theory discouraged the only method for guiding changes in political forms: using intelligence to judge consequences. Like the theory it replaced, this theory assumed a single standard form defining the state as essential and true. Drawing a false analogy with physical science, its supporters claimed that a “scientific” study of society required assuming this uniform process. Incidentally, the theory flattered the vanity of politically “advanced” nations. These nations assumed they were so near the peak of evolution that they could wear the crown of statehood.

The hypothesis presented makes possible a consistently empirical or historical treatment of the changes in political forms and arrangements, free from any overriding conceptual domination such as is inevitable when a “true” state is postulated, whether that be thought of as deliberately made or as evolving by its own inner law. Intrusions from non-political internal occurrences, industrial and technological, and from external events, borrowings, travel, migrations, explorations, wars, modify the consequences of preëxisting associations to such an extent that new agencies and functions are necessitated. Political forms are also subject to alterations of a more indirect sort. Developments of better methods of thinking bring about observation of consequences which were concealed from a vision which used coarser intellectual tools. Quickened intellectual insight also makes possible invention of new political devices. Science has not indeed played a large rôle. But intuitions of statesmen and of political theorists have occasionally penetrated into the operations of social forces in such a way that a new turn has been given to legislation and to administration. There is a margin of toleration in the body politic as well as in an organic body. Measures not in any sense inevitable are accommodated to after they have once been taken; and a further diversity is thereby introduced in political manners.

The proposed hypothesis allows a consistently empirical or historical approach to changes in political forms and arrangements. No overarching concept needs to dominate this approach. Such domination is inevitable when we assume a “true” state exists. This holds whether the state is seen as deliberately created or as developing according to its own internal law. Internal, nonpolitical developments in industry and technology change the consequences of existing associations. So do external events, borrowings, travel, migrations, explorations, and wars. These changes are so extensive that new agencies and functions become necessary. Political forms also change in more indirect ways. Better methods of thinking reveal consequences that cruder intellectual tools could not detect. Sharper intellectual insight also makes it possible to invent new political tools. Science has, admittedly, played no large role. But statesmen and political theorists have occasionally gained intuitive insights into how social forces work. These insights have given legislation and administration a new direction. The political community, like a living body, has some capacity to tolerate changes. Once measures have been adopted, the community adapts to them, even when those measures were not inevitable in any sense. This adaptation introduces further variety into political practices.

In short, the hypothesis which holds that publics are constituted by recognition of extensive and enduring indirect consequences of acts accounts for the relativity of states, while the theories which define them in terms of specific causal authorship imply an absoluteness which is contradicted by facts. The attempt to find by the “comparative method” structures which are common to antique and modern, to occidental and oriental states, has involved a great waste of industry. The only constant is the function of caring for and regulating the interests which accrue as the result of the complex indirect expansion and radiation of conjoint behavior.

In short, consider the hypothesis that publics form when people recognize the widespread, lasting indirect consequences of actions. This hypothesis explains why states vary with circumstances. By contrast, theories that define states by specific causes imply an absolute nature that the facts contradict. Attempts to use the “comparative method” to find structures shared by ancient and modern, Western and Eastern states have wasted much effort. The only constant is the function of protecting and regulating interests arising from the complex, spreading indirect effects of joint behavior.

We conclude, then, that temporal and local diversification is a prime mark of political organization, and one which, when it is analyzed, supplies a confirming test of our theory. A second mark and evidence is found in an otherwise inexplicable fact that the quantitative scope of results of conjoint behavior generates a public with need for organization. As we already noted, what are now crimes subject to public cognizance and adjudication were once private ebullitions, having the status now possessed by an insult proffered by one to another. An interesting phase of the transition from the relatively private to the public, at least from a limited public to a larger one, is seen in the development in England of the King’s Peace. Justice until the twelfth century was administered mainly by feudal and shire courts, courts of hundreds, etc. Any lord who had a sufficient number of subjects and tenants decided controversies and imposed penalties. The court and justice of the king was but one among many, and primarily concerned with royalty’s tenants, servants, properties and dignities. The monarchs wished, however, to increase their revenues and expand their power and prestige. Various devices were invented and fictions set up by means of which the jurisdiction of kingly courts was extended. The method was to allege that various offenses, formerly attended to by local courts, were infractions of the king’s peace. The centralizing movement went on till the king’s justice had a monopoly. The instance is significant. A measure instigated by desire to increase the power and profit of the royal dynasty became an impersonal public function by bare extension. The same sort of thing has repeatedly occurred when personal prerogatives have passed into normal political processes. Something of the same sort is manifested in contemporary life when modes of private business become “affected with a public interest” because of quantitative expansion.

We conclude, then, that variation across time and place is a key feature of political organization. When analyzed, this variation provides a test that confirms our theory. A second feature also supports our theory: the scale of the effects of joint activity creates a public needing organization. Without our theory, this fact cannot be explained. As we have already noted, acts now treated as crimes subject to public judgment were once considered private outbursts. Such acts had the same status as an insult from one person to another has today. The development of the King’s Peace in England shows an interesting stage in the shift from private to public affairs. At least, it shows a shift from a limited public to a larger one. Until the twelfth century, justice was administered mainly by feudal courts, shire courts, courts of hundreds, and similar bodies. Any lord with enough subjects and tenants settled disputes and imposed penalties. The king’s court and system of justice were only one among many. They dealt mainly with royal tenants, servants, property, and privileges. But the monarchs wanted to increase their revenues and expand their power and prestige. Various methods and legal fictions were devised to extend the authority of the king’s courts. The method was to claim that various offenses previously handled by local courts were breaches of the king’s peace. This centralization continued until the king’s justice held a monopoly. This example is significant. A measure prompted by the desire to increase the royal dynasty’s power and profit became an impersonal public function. The change came simply through its expansion. The same kind of change has repeatedly occurred when personal privileges have become part of regular political processes. Something similar happens today when forms of private business become “affected with a public interest” because they grow in scale.

A converse instance is presented in transfer from public to private domain of religious rites and beliefs. As long as the prevailing mentality thought that the consequences of piety and irreligion affected the entire community, religion was of necessity a public affair. Scrupulous adherence to the customary cult was of the highest political import. Gods were tribal ancestors or founders of the community. They granted communal prosperity when they were duly acknowledged and were the authors of famine, pestilence and defeat in war if their interests were not zealously attended to. Naturally when religious acts had such extended consequences, temples were public buildings, like the agora and forum; rites were civic functions and priests public officials. Long after theocracy vanished, theurgy was a political institution. Even when disbelief was rife, few there were who would run the risk of neglecting the ceremonials.

The reverse case appears in the shift of religious rites and beliefs from public to private life. As long as people generally believed that devotion and irreligion affected the whole community, religion was necessarily a public affair. Strict observance of traditional worship was of the highest political importance. Gods were tribal ancestors or founders of the community. The gods granted prosperity to the community when properly honored. If their interests were not zealously protected, the gods caused famine, disease, and defeat in war. Naturally, when religious acts had such far-reaching consequences, temples were public buildings, like the agora and forum. Rites were civic functions, and priests were public officials. Long after rule by religious authorities disappeared, rituals invoking divine power remained a political institution. Even when disbelief was widespread, few would risk neglecting the ceremonies.

The revolution by which piety and worship were relegated to the private sphere is often attributed to the rise of personal conscience and assertion of its rights. But this rise is just the thing to be accounted for. The supposition that it was there all the time in a submerged condition and finally dared to show itself reverses the order of events. Social changes, both intellectual and in the internal composition and external relations of peoples, took place so that men no longer connected attitudes of reverence or disrespect to the gods with the weal and woe of the community. Faith and unbelief still had serious consequences, but these were now thought to be confined to the temporal and eternal happiness of the persons directly concerned. Given the other belief, and persecution and intolerance are as justifiable as is organized hostility to any crime; impiety is the most dangerous of all threats to public peace and well-being. But social changes gradually effected as one of the new functions of the life of the community the rights of private conscience and creed.

The shift that made religious devotion and worship private matters is often credited to the rise of individual conscience. People began asserting the rights of conscience. But that rise is precisely what needs explaining. To assume that individual conscience had always existed beneath the surface and finally dared to emerge reverses the actual sequence. Social changes came first. These included changes in ideas, in the makeup of societies, and in relations between peoples. As a result, people stopped linking reverence or disrespect toward the gods to the community’s fortunes. Belief and unbelief still had serious consequences. But people now thought those consequences affected only the earthly and eternal happiness of the individuals directly involved. If people believe instead that religious attitudes affect the whole community, persecution and intolerance are as justified as organized opposition to any crime. On that view, lack of reverence for the gods is the most dangerous of all threats to public peace and well-being. But social changes gradually made protecting the rights of individual conscience and religious belief a new function of community life.

In general, behavior in intellectual matters has moved from the public to the private realm. This radical change was, of course, urged and justified on the ground of intrinsic and sacred private right. But, as in the special case of religious beliefs, it is strange, if this reason be accepted, that mankind lived so long in total unawareness of the existence of the right. In fact, the idea of a purely private area of consciousness, where whatever goes on has no external consequences, was in the first instance a product of institutional change, political and ecclesiastic, although, like other beliefs, once it was established it had political results. The observation that the interests of the community are better cared for when there is permitted a large measure of personal judgment and choice in the formation of intellectual conclusions, is an observation which could hardly have been made until social mobility and heterogeneity had brought about initiation and invention in technological matters and industry, and until secular pursuits had become formidable rivals to church and state. Even yet, however, toleration in matters of judgment and belief is largely a negative matter. We agree to leave one another alone (within limits) more from recognition of evil consequences which have resulted from the opposite course rather than from any profound belief in its positive social beneficence. As long as the latter consequence is not widely perceived, the so-called natural right to private judgment will remain a somewhat precarious rationalization of the moderate amount of toleration which has come into being. Such phenomena as the Ku Klux and legislative activity to regulate science show that the belief in liberty of thought is still superficial.

In general, intellectual activity has moved from the public to the private sphere. This radical change was, of course, promoted and defended as a matter of inherent and sacred individual rights. But if we accept this justification, humanity’s long, complete ignorance of such a right is strange. The same puzzle arises with religious beliefs. In fact, the idea of a purely private realm of consciousness first arose from changes in political and church institutions. In this supposed private realm, nothing that happens has consequences outside it. Although the idea arose from institutional changes, once established it had political effects, like other beliefs. The community’s interests are better served when people have considerable freedom to judge and choose in forming their intellectual conclusions. But this observation could hardly have been made before certain social changes occurred. Social mobility and diversity had to encourage initiative and invention in technology and industry. Secular activities also had to become powerful rivals to church and state. Even now, however, tolerance in matters of judgment and belief largely means refraining from interference. We agree to leave one another alone (within limits) mainly because we recognize the harm caused by doing otherwise. We act less from any deep belief that such tolerance positively benefits society. As long as this social benefit is not widely recognized, the so-called natural right to private judgment will remain insecure. It will remain a justification for the moderate amount of tolerance that has developed. Such phenomena as the Ku Klux and legislative efforts to regulate science show how shallow belief in intellectual freedom remains.

If I make an appointment with a dentist or doctor, the transaction is primarily between us. It is my health which is affected and his pocket-book, skill and reputation. But exercise of the professions has consequences so widespread that the examination and licensing of persons who practice them becomes a public matter. John Smith buys or sells real estate. The transaction is effected by himself and some other person. Land, however, is of prime importance to society, and the private transaction is hedged about with legal regulations; evidence of transfer and ownership has to be recorded with a public official in forms publicly prescribed. The choice of a mate and the act of sexual union are intimately personal. But the act is the condition of bearing of offspring who are the means of the perpetuation of the community. The public interest is manifested in formalities which are necessary to make a union legal and for its legal termination. Consequences, in a word, affect large numbers beyond those immediately concerned in the transaction. It is often thought that in a socialistic state the formation and dissolution of marriages would cease to have a public phase. It is possible. But it is also possible that such a state would be even more alive than is the community at present to the consequences of the union of man and woman not only upon children but upon its own well-being and stability. In that case certain regulations would be relaxed, but there might be imposed stringent rules as to health, economic capacity and psychologic compatibility as preconditions of wedlock.

If I make an appointment with a dentist or doctor, the transaction is mainly between the two of us. My health is affected, along with his income, skill, and reputation. But these professions have such widespread effects that examining and licensing their practitioners becomes a public matter. John Smith buys or sells real estate. The transaction is between him and another person. Land, however, is vital to society, so legal rules surround this private transaction. Evidence of the transfer and ownership must be recorded with a public official, using officially required forms. Choosing a partner and having sex are deeply personal acts. But sexual union makes possible the birth of children, through whom the community continues to exist. The public interest appears in the formal requirements for making a union legal and for legally ending the union. In short, the consequences affect many people beyond those directly involved in the transaction. People often think that in a socialist state, entering and ending marriages would no longer be public matters. That is possible. But such a state might be even more aware than today's community of the consequences of unions between men and women. Those consequences affect not only children but also the state's own well-being and stability. In that case, some rules would be relaxed. But strict requirements concerning health, financial capacity, and psychological compatibility might have to be met before marriage.

No one can take into account all the consequences of the acts he performs. It is a matter of necessity for him, as a rule, to limit his attention and foresight to matters which, as we say, are distinctively his own business. Any one who looked too far abroad with regard to the outcome of what he is proposing to do would, if there were no general rules in existence, soon be lost in a hopelessly complicated muddle of considerations. The man of most generous outlook has to draw the line somewhere, and he is forced to draw it in whatever concerns those closely associated with himself. In the absence of some objective regulation, effects upon them are all he can be sure of in any reasonable degree. Much of what is called selfishness is but the outcome of limitation of observation and imagination. Hence when consequences concern a large number, a number so mediately involved that a person cannot readily prefigure how they are to be affected, that number is constituted a public which intervenes. It is not merely that the combined observations of a number cover more ground than those of a single person. It is rather that the public itself, being unable to forecast and estimate all consequences, establishes certain dikes and channels so that actions are confined within prescribed limits, and insofar have moderately predictable consequences.

No one can consider all the consequences of their actions. As a rule, people must limit their attention and foresight to what we call their own business. Without general rules, anyone looking too far beyond their immediate concerns when planning an action would soon become hopelessly confused. The possible consequences would raise too many complicated questions. Even the person with the broadest concern for others has to draw the line somewhere. They are forced to draw it around matters affecting people closely connected to them. Without some external rules, effects on those people are all they can predict with any reasonable confidence. Much of what we call selfishness simply results from limits to observation and imagination. So when consequences affect many people indirectly, an individual cannot readily imagine how those people will be affected. Those people then form a public that intervenes. The point is not merely that many people's combined observations cover more ground than one person's observations. Rather, the public itself cannot predict and assess all consequences. So the public establishes barriers and channels to keep actions within set limits. Within those limits, the consequences of actions become somewhat predictable.

The regulations and laws of the state are therefore misconceived when they are viewed as commands. The “command” theory of common and statute law is in reality a dialectical consequence of the theories, previously criticized, which define the state in terms of an antecedent causation, specifically of that theory which takes “will” to be the causal force which generates the state. If a will is the origin of the state, then state-action expresses itself in injunctions and prohibitions imposed by its will upon the wills of subjects. Sooner or later, however, the question arises as to the justification of the will which issues commands. Why should the will of the rulers have more authority than that of others? Why should the latter submit? The logical conclusion is that the ground of obedience lies ultimately in superior force. But this conclusion is an obvious invitation to trial of forces to see where superior force lies. In fact the idea of authority is abolished, and that of force substituted. The next dialectical conclusion is that the will in question is something over and above any private will or any collection of such wills: is some overruling “general will.” This conclusion was drawn by Rousseau, and under the influence of German metaphysics was erected into a dogma of a mystic and transcendent absolute will, which in turn was not another name for force only because it was identified with absolute reason. The alternative to one or other of these conclusions is surrender of the causal authorship theory and the adoption of that of widely distributed consequences, which, when they are perceived, create a common interest and the need of special agencies to care for it.

The state’s regulations and laws are therefore misunderstood when viewed as commands. The “command” theory of common and statute law follows logically from the theories criticized earlier. Those theories define the state by a cause that precedes and produces it. In particular, the command theory follows from the theory that “will” is the force that creates the state. If a will creates the state, then the state acts through orders and prohibitions. The state’s will imposes these on the wills of its subjects. Sooner or later, however, a question arises: What justifies the will that issues commands? Why should the rulers’ will have more authority than anyone else’s? Why should others submit? The logical conclusion is that obedience ultimately rests on superior force. But this conclusion plainly invites a contest of strength to determine who has superior force. In effect, the idea of authority disappears, replaced by the idea of force. The next logical conclusion is that the will in question stands above any individual will or collection of individual wills. It is an overriding “general will.” Rousseau drew this conclusion. Under the influence of German metaphysics, this idea became the dogma of a mystical, transcendent, absolute will. This absolute will, in turn, escaped being merely another name for force only because it was identified with absolute reason. The alternative to either conclusion is to abandon the theory that defines the state by the cause that creates it. Instead, we must adopt the theory that explains the state through consequences affecting many people. When people recognize these consequences, that recognition creates a common interest and a need for special agencies to serve it.

Rules of law are in fact the institution of conditions under which persons make their arrangements with one another. They are structures which canalize action; they are active forces only as are banks which confine the flow of a stream, and are commands only in the sense in which the banks command the current. If individuals had no stated conditions under which they come to agreement with one another, any agreement would either terminate in a twilight zone of vagueness or would have to cover such an enormous amount of detail as to be unwieldy and unworkable. Each agreement, moreover, might vary so from every other that nothing could be inferred from one arrangement as to the probable consequences of any other. Legal rules state certain conditions which when met make an agreement a contract. The terms of the agreement are thereby canalized within manageable limits, and it is possible to generalize and predict from one to another. Only the exigencies of a theory lead one to hold that there is a command that an agreement be made in such and such a form.² What happens is that certain conditions are set such that if a person conform to them, he can count on certain consequences, while if he fails to do so he cannot forecast consequences. He takes a chance and runs the risk of having the whole transaction invalidated to his loss. There is no reason to interpret even the “prohibitions” of criminal law in any other way. Conditions are stated in reference to consequences which may be incurred if they are infringed or transgressed. We can similarly state the undesirable results which will happen if a stream breaks through its banks; if the stream were capable of foreseeing these consequences and directing its behavior by the foresight, we might metaphorically construe the banks as issuing a prohibition.

Legal rules establish the conditions under which people make arrangements with one another. These rules are structures that channel action, just as banks contain the flow of a stream. They are active forces only as stream banks are active forces. They give commands only in the sense that banks command the current. Without established conditions for reaching agreements, any agreement would end in vagueness or require an unmanageable, impractical amount of detail. Each agreement might also differ so much from every other that one would offer no guidance about another’s likely consequences. Legal rules set out certain conditions that make an agreement a contract when those conditions are met. These conditions keep the agreement’s terms within manageable limits. They also make it possible to generalize and predict consequences from one agreement to another. Only the demands of a theory lead anyone to claim that agreements are commanded to take a particular form.² What actually happens is that certain conditions are established. If a person meets those conditions, that person can count on certain consequences. If the person fails to meet them, the consequences cannot be predicted. The person takes a chance, risking having the entire transaction declared invalid and suffering a loss. There is no reason to interpret even the “prohibitions” of criminal law any differently. Conditions are stated along with the consequences that may follow if those conditions are violated. We can similarly describe the undesirable results that will follow if a stream breaks through its banks. If the stream could foresee these consequences and guide its behavior accordingly, we might metaphorically describe the banks as issuing a prohibition.

This account explains both the large arbitrary and contingent element in laws and their plausible identification with reason, dissimilar as are the two considerations. There are many transactions in which the thing of chief importance is that consequences be determinate in some fashion rather than that they be determined by some inherent principle to be just such and such. In other words, within limits it is indifferent what results are fixed by the conditions settled upon; what is important is that the consequences be certain enough to be predictable. The rule of the road is typical of a large number of rules. So is the fixing of sunset or of a specified hour as the exact time when the felonious entering of the premises of another takes on a more serious quality. On the other hand, rules of law are reasonable so that “reason” is appealed to by some as their fount and origin on the ground pointed out by Hume.³ Men are naturally shortsighted, and the shortsightedness is increased and perverted by the influence of appetite and passion. “The law” formulates remote and long-run consequences. It then operates as a condensed available check on the naturally overweening influence of immediate desire and interest over decision. It is a means of doing for a person what otherwise only his own foresight, if thoroughly reasonable, could do. For a rule of law, although it may be laid down because of a special act as its occasion, is formulated in view of an indefinite variety of other possible acts. It is necessarily a generalization; for it is generic as to the predictable consequences of a class of facts. If the incidents of a particular occasion exercise undue influence upon the content of a rule of law, it will soon be overruled, either explicitly or by neglect. Upon this theory, the law as “embodied reason” means a formulated generalization of means and procedures in behavior which are adapted to secure what is wanted. Reason expresses a function, not a causal origin. Law is reasonable as a man is sensible who selects and arranges conditions adapted to produce the ends he regards as desirable. A recent writer, who regards “reason” as that which generates laws, says, “A debt does not in reason cease to be a debt because time has passed, but the law sets up a limitation. A trespass does not cease in reason to be a trespass because it is indefinitely repeated, yet the law shows a tendency to admit an unresisted trespass in time to the status of right. Time, distance and chance are indifferent to pure reason; but they play their part in the legal order.”⁴ But if reasonableness is a matter of adaptation of means to consequences, time and distance are things to be given great weight; for they effect both consequences and the ability to foresee them and to act upon them. Indeed, we might select statutes of limitation as excellent examples of the kind of rationality the law contains. Only if reason is looked upon as “pure,” that is as a matter of formal logic, do the instances cited manifest limitation of reason.

This account explains both the large arbitrary and circumstantial element in laws and their plausible connection with reason. These are very different considerations. In many dealings, what matters most is that consequences be settled in some way. It matters less that an inherent principle require those particular consequences. In other words, within limits, the particular results fixed by the agreed conditions do not matter. What matters is that the consequences be certain enough to predict. The rule governing which side of the road to use is typical of many rules. Another example is setting sunset or a specific hour as the exact point when criminal entry becomes more serious. The entry in question is into someone else’s property. On the other hand, legal rules are reasonable. For this reason, some people appeal to “reason” as the source of legal rules, on grounds Hume identified.³ People are naturally shortsighted, and appetites and passions increase and distort this shortsightedness. “The law” sets out distant and long-term consequences. The law then provides a compact, readily available check on immediate desires and interests, which naturally dominate decisions. Law does for people what otherwise only their own thoroughly reasonable foresight could do. A legal rule may be established in response to a particular act. But the rule is framed with an indefinite range of other possible acts in mind. A legal rule is necessarily a generalization, because the rule concerns the predictable consequences of a class of facts. If the details of a particular case unduly shape a legal rule, the rule will soon be overturned. The rule will either be explicitly rejected or simply fall out of use. On this view, law as “embodied reason” means a stated generalization about methods and procedures of conduct suited to securing desired results. Reason describes a function, not a causal origin. Law is reasonable in the same way that a person is sensible when choosing and arranging conditions to achieve desired ends. A recent writer, who sees “reason” as the source of laws, says, “Reason does not make a debt cease to be a debt merely because time has passed. But the law sets a time limit. Reason does not make a trespass cease to be a trespass because it is repeated indefinitely. Yet the law tends, over time, to recognize an unopposed trespass as a right. Time, distance and chance do not matter to pure reason. But they play a part in the legal order.”⁴ But if reasonableness means adapting means to consequences, time and distance deserve great weight. Both affect consequences and our ability to foresee those consequences and act on them. Indeed, statutes of limitation could serve as excellent examples of the kind of rationality found in law. The examples cited show limits to reason only if reason is considered “pure,” meaning a matter of formal logic.

A third mark of the public organized as a state, a mark which also provides a test of our hypothesis, is that it is concerned with modes of behavior which are old and hence well established, engrained. Invention is a peculiarly personal act, even when a number of persons combine to make something new. A novel idea is the kind of thing that has to occur to somebody in the singular sense. A new project is something to be undertaken and set agoing by private initiative. The newer an idea or plan, the more it deviates from what is already recognized and established in practice. By the nature of the case an innovation is a departure from the customary. Hence the resistance it is likely to encounter. We, to be sure, live in an era of discoveries and inventions. Speaking generically, innovation itself has become a custom. Imagination is wonted to it; it is expected. When novelties take the form of mechanical appliances, we incline to welcome them. But this is far from always having been the case. The rule has been to look with suspicion and greet with hostility the appearance of anything new, even a tool or utensil. For an innovation is a departure, and one which brings in its train some incalculable disturbance of the behavior to which we have grown used and which seems “natural.” As a recent writer has clearly shown, inventions have made their way insidiously; and because of some immediate convenience. If their effects, their long-run consequences, in altering habits of behavior had been foreseen, it is safe to say that most of them would have been destroyed as wicked, just as many of them were retarded in adoption because they were felt to be sacrilegious.⁵ In any case, we cannot think of their invention being the work of the state.⁶

A third feature of the public organized as a state is its concern with old, well-established, deeply ingrained behavior. This feature also provides a test of our hypothesis. Invention is a distinctly personal act, even when several people work together to make something new. A new idea has to occur to someone as an individual. A new project has to be undertaken and set in motion through private initiative. The newer an idea or plan, the further it departs from accepted ideas and established practices. By its very nature, an innovation breaks with custom. That is why innovation is likely to meet resistance. We do, of course, live in an age of discoveries and inventions. Broadly speaking, innovation itself has become a custom. Our imaginations are used to innovation, and we expect it. When new things take the form of mechanical devices, we tend to welcome them. But people have certainly not always welcomed new things. The usual response to anything new, even a tool or utensil, has been suspicion and hostility. For an innovation is a break with custom. It brings some unpredictable disruption to behavior we have grown used to and regard as “natural.” As a recent writer has clearly shown, inventions have slipped into use unnoticed because they offered some immediate convenience. What if people had foreseen the long-term effects of inventions on their habits of behavior? It is safe to say that most inventions would have been destroyed as wicked. In much the same way, many inventions were slow to gain acceptance because people felt they were sacrilegious.⁵ In any case, we cannot think of these inventions as the work of the state.⁶

The organized community is still hesitant with reference to new ideas of a non-technical and non-technological nature. They are felt to be disturbing to social behavior; and rightly so, as far as old and established behavior is concerned. Most persons object to having their habits unsettled, their habits of belief no less than habits of overt action. A new idea is an unsettling of received beliefs; otherwise, it would not be a new idea. This is only to say that the production of new ideas is peculiarly a private performance. About the most we can ask of the state, judging from states which have so far existed, is that it put up with their production by private individuals without undue meddling. A state which will organize to manufacture and disseminate new ideas and new ways of thinking may come into existence some time, but such a state is a matter of faith, not sight. When it comes it will arrive because the beneficial consequences of new ideas have become an article of common faith and repute. It may, indeed, be said that even now the state provides those conditions of security which are necessary if private persons are to engage effectually in discovery and invention. But this service is a by-product; it is foreign to the grounds on which the conditions in question are maintained by the public. And it must be offset by noting the extent to which the state of affairs upon which the public heart is most set is unfavorable to thinking in other than technical lines. In any case, it is absurd to expect the public, because it is called in no matter how eulogistic a sense the state, to rise above the intellectual level of its average constituents.

The organized community still hesitates to accept new ideas outside technical and technological fields. Such ideas are seen as disruptive to social behavior, and rightly so when it comes to established behavior. Most people object to having their habits disturbed, whether habits of belief or habits of action. A new idea is a disruption of accepted beliefs. Otherwise, the idea would not be new. This means that producing new ideas is a distinctly private activity. Judging by the states that have existed so far, we can ask little more than tolerance from the state. At most, we can ask the state to tolerate individuals producing new ideas without interfering too much. A state organized to produce and spread new ideas and ways of thinking may someday exist. But such a state remains a matter of faith, not something we can see. When such a state comes, it will come because the benefits of new ideas have become widely believed and recognized. Indeed, one may argue that the state already provides the security individuals need to pursue discovery and invention effectively. But this service is a by-product. The public does not maintain those secure conditions for that purpose. And this benefit must be weighed against how far the conditions the public most desires discourage thinking outside technical fields. In any case, calling the public the state, however much praise the name implies, changes nothing. Expecting the public to rise above the intellectual level of its average members is absurd.

When, however, a mode of behavior has become old and familiar, and when an instrumentality has come into use as a matter of course, provided it is a prerequisite of other customary pursuits, it tends to come within the scope of the state. An individual may make his own track in a forest; but highways are usually public concerns. Without roads which one is free to use at will, men might almost as well be castaways on a desert island. Means of transit and communication affect not only those who utilize them but all who are dependent in any way upon what is transported, whether as producers or consumers. The increase of easy and rapid intercommunication means that production takes place more and more for distant markets and it puts a premium upon mass-production. Thus it becomes a disputed question whether railroads as well as highways should not be administered by public officials, and in any case some measure of official regulation is instituted, as they become settled bases of social life.

However, a practice tends to become a government concern once it is old and familiar. The same holds for a tool or service once its use becomes routine. In both cases, this happens if the practice, tool, or service is necessary for other customary activities. An individual may make a path through a forest, but highways are usually public concerns. Without roads that people are free to use at will, people might almost as well be stranded on a desert island. Transportation and communication systems affect more than those who use them. They also affect all who depend in any way on what is transported, whether as producers or consumers. As communication becomes easier and faster, production increasingly serves distant markets, giving mass production an advantage. This raises a disputed question: should railroads, like highways, be run by public officials? In any case, some government regulation is introduced as railroads become established foundations of social life.

The tendency to put what is old and established in uniform lines under the regulation of the state has psychological support. Habits economize intellectual as well as muscular energy. They relieve the mind from thought of means, thus freeing thought to deal with new conditions and purposes. Moreover, interference with a well-established habit is followed by uneasiness and antipathy. The efficiency of liberation from attention to whatever is regularly recurrent is reënforced by an emotional tendency to get rid of bother. Hence there is a general disposition to turn over activities which have become highly standardized and uniform to representatives of the public. It is possible that the time will come when not only railways will have become routine in their operation and management, but also existing modes of machine production, so that business men instead of opposing public ownership will clamor for it in order that they may devote their energies to affairs which involve more novelty, variation and opportunities for risk and gain. They might conceivably, even under a régime of continued private property in general, no more wish to be bothered with routinized operations than they would want to take over the care of public streets. Even now the question of the public’s taking charge of the machinery of the manufacture of goods is less a matter of wholesale “individualism” versus “socialism” than it is of the ratio of the experimental and novel in their management to the habitual and matter-of-course; of that which is taken for granted as a condition of other things to that which is significant in its own operation.

There are psychological reasons for placing old, established activities under uniform state regulation. Habits save mental as well as physical energy. They free the mind from thinking about methods, leaving it free to consider new conditions and purposes. Moreover, disrupting an established habit causes uneasiness and dislike. Freedom from attending to recurring tasks makes us more efficient. An emotional desire to avoid bother reinforces this advantage. So people generally tend to hand over highly standardized, uniform activities to public representatives. A time may come when not only railway operations and management but also existing methods of machine production become routine. Businessmen might then demand public ownership instead of opposing it. They could then devote their energies to activities offering more novelty, variety, and opportunities for risk and gain. Even if private property generally continued, businessmen might conceivably have no wish to bother with routine operations. They might no more want those responsibilities than they would want to take over the care of public streets. Even now, whether the public should take charge of the machinery used to manufacture goods depends less on sweeping ideological choices. The issue is less “individualism” versus “socialism” than the balance between experimentation and novelty in management and routine, habitual practices. It is a balance between what is taken for granted as a basis for other activities and what matters in its own operation.

A fourth mark of the public is indicated by the idea that children and other dependents (such as the insane, the permanently helpless) are peculiarly its wards. When the parties involved in any transaction are unequal in status, the relationship is likely to be one-sided, and the interests of one party to suffer. If the consequences appear serious, especially if they seem to be irretrievable, the public brings to bear a weight that will equalize conditions. Legislatures are more ready to regulate the hours of labor of children than of adults, of women than of men. In general, labor legislation is justified against the charge that it violates liberty of contract on the ground that the economic resources of the parties to the arrangement are so disparate that the conditions of a genuine contract are absent; action by the state is introduced to form a level on which bargaining takes place. Labor unions often object, however, to such “paternalistic” legislation on the ground that voluntary combinations to ensure collective bargaining is better for those concerned than action taken without the active participation of laborers. The general objection that paternalism tends to keep those affected by it permanently in the status of children, without an impetus to help themselves, rests on the same basis. The difference here is nevertheless not as to the principle that inequality of status may call for public intervention, but as to the best means of securing and maintaining equality.

A fourth feature of the public is its special responsibility to protect children and other dependents. These include people with severe mental illness and those permanently unable to care for themselves. When the parties in a transaction have unequal status, the relationship is likely to be one-sided. One party’s interests are likely to suffer. If the consequences seem serious, especially if they seem irreversible, the public uses its power to equalize conditions. Legislatures are more willing to regulate working hours for children than for adults, and for women than for men. Labor laws are generally defended against the charge of violating freedom of contract on the following grounds. The parties’ economic resources are so unequal that the conditions for a genuine contract do not exist. The state intervenes to create equal footing for bargaining. Labor unions, however, often object to such “paternalistic” laws. They argue that voluntary organizing for collective bargaining serves workers better than action taken without workers’ active participation. The general objection to paternalism rests on the same reasoning. Paternalism tends to keep those affected permanently in the position of children, without any incentive to help themselves. Nevertheless, the disagreement is not about the principle that unequal status may call for public intervention. The disagreement concerns the best way to achieve and maintain equality.

There has been a steady tendency for the education of children to be regarded as properly a state charge in spite of the fact that children are primarily the care of a family. But the period in which education is possible to an effective degree is that of childhood; if this time is not taken advantage of the consequences are irreparable. The neglect can rarely be made up later. In the degree, then, that a certain measure of instruction and training is deemed to have significant consequences for the social body, rules are laid down affecting the action of parents in relation to their children, and those who are not parents are taxed—Herbert Spencer to the contrary notwithstanding—to maintain schools. Again, the consequences of neglect of safeguards in industries involving machines which are dangerous and those presenting unhygienic conditions, are so serious and irretrievable that the modern public has intervened to maintain conditions conducive to safety and health. Movements which aim at insurance against illness and old-age under governmental auspices illustrate the same principle. While public regulation of a minimum wage is still a disputed matter, the argument in behalf of it appeals to the criterion stated. The argument in effect is that a living wage is a matter of such serious indirect consequences to society that it cannot be safely left to the parties directly concerned, owing to the fact that immediate need may incapacitate one party to the transaction from effective bargaining.

Children’s education has increasingly been seen as a proper responsibility of the state, although children are primarily their family’s responsibility. But childhood is the time when education can be effective. If that opportunity is missed, the consequences cannot be undone. The neglect can rarely be made up for later. So, when a certain level of instruction and training is considered to have significant consequences for society, rules are established. These rules govern how parents act toward their children. People without children are also taxed to support schools, despite Herbert Spencer’s objections. The same principle applies to industries with dangerous machinery or unhealthy working conditions. The consequences of neglecting safeguards are so serious and irreversible that the modern public has intervened. This intervention maintains conditions that promote safety and health. Movements for government-backed insurance against illness and old age illustrate the same principle. Although public regulation of a minimum wage remains disputed, the argument for regulation appeals to the same standard. In effect, the argument is that a living wage has such serious indirect consequences for society. For that reason, wages cannot safely be left to the parties directly involved. Immediate need may prevent one party from bargaining effectively.

In what has been said there is no attempt to lay down criteria to be applied in a predetermined way to ensure just such and such results. We are not concerned to predict the special forms which state action will take in the future. We have simply been engaged in pointing out the marks by which public action as distinct from private is characterized. Transactions between singular persons and groups bring a public into being when their indirect consequences—their effects beyond those immediately engaged in them—are of importance. Vagueness is not eliminated from the idea of importance. But at least we have pointed out some of the factors which go to make up importance: namely, the far-reaching character of consequences, whether in space or time; their settled, uniform and recurrent nature, and their irreparableness. Each one of these matters involves questions of degree. There is no sharp and clear line which draws itself, pointing out beyond peradventure, like the line left by a receding high tide, just where a public comes into existence which has interests so significant that they must be looked after and administered by special agencies, or governmental officers. Hence there is often room for dispute. The line of demarcation between actions left to private initiative and management and those regulated by the state has to be discovered experimentally.

Nothing said here attempts to set fixed criteria to be applied in a predetermined way to guarantee particular results. We are not trying to predict the specific forms state action will take in the future. We have simply identified the features that distinguish public action from private action. Interactions among individuals and groups bring a public into being when their indirect consequences are important. These are consequences that affect people beyond those directly involved. The idea of importance remains vague. But we have at least identified some factors that make consequences important. These include how far consequences reach across space or time, how consistently and regularly they recur, and how irreversible they are. Each of these factors involves questions of degree. No sharp, clear boundary appears on its own, like the line left by a receding high tide. No such boundary shows beyond doubt exactly where a public comes into existence with interests requiring special agencies or government officials. Those interests must be significant enough to require such care and management. So there is often room for disagreement. The boundary between actions left to private initiative and management and actions regulated by the state must be discovered through experimentation.

As we shall see later, there are assignable reasons why it will be drawn very differently at different times and places. The very fact that the public depends upon consequences of acts and the perception of consequences, while its organization into a state depends upon the ability to invent and employ special instrumentalities, shows how and why publics and political institutions differ widely from epoch to epoch and from place to place. To suppose that an a priori conception of the intrinsic nature and limits of the individual on one side and the state on the other will yield good results once for all is absurd. If, however, the state has a definite nature, as it should have if it were formed by fixed causal agencies, or if individuals have a nature fixed once for all apart from conditions of association, a final and wholesale partitioning of the realms of personal and state activity is the logical conclusion. The failure of such a theory to reach practical solutions is, therefore, a further confirmation of the theory which emphasizes the consequences of activity as the essential affair.

As we will see later, there are specific reasons why it will be drawn very differently across times and places. The public depends on the consequences of actions and on people's awareness of those consequences. Its organization into a state, however, depends on the ability to invent and use specialized tools and methods. These facts show how and why publics and political institutions vary widely across eras and places. It is absurd to suppose that an a priori idea can produce good results once and for all. Such an idea would define the inherent nature and limits of both the individual and the state. Suppose, however, that the state has a fixed nature, as it should if fixed causes brought it into being. Or suppose individuals have a nature fixed once and for all, independent of the conditions of their relationships with others. In either case, the logical conclusion is a final, comprehensive division between the areas of individual and state activity. The failure of such a theory to produce practical solutions therefore further supports the theory that makes the consequences of activity central.

In conclusion, we shall make explicit what has been implied regarding the relation to one another of public, government and state.⁷ There have been two extreme views about this point. On one hand, the state has been identified with government. On the other hand, the state, having a necessary existence of its own, per se, is said then to proceed to form and employ certain agencies forming government, much as a man hires servants and assigns them duties. The latter view is appropriate when the causal agency theory is relied upon. Some force, whether a general will or the singular wills of assembled individuals, calls the state into being. Then the latter as a secondary operation chooses certain persons through whom to act. Such a theory helps those who entertain it to retain the idea of the inherent sanctity of the state. Concrete political evils such as history exhibits in abundance can be laid at the door of fallible and corrupt governments, while the state keeps its honor unbesmirched. The identification of the state with government has the advantage of keeping the mind’s eye upon concrete and observable facts; but it involves an unaccountable separation between rulers and people. If a government exists by itself and on its own account, why should there be government? Why should there persist the habits of loyalty and obedience which permit it to rule?

In conclusion, we will make explicit what we have implied about the relationship between the public, government, and state.⁷ There have been two extreme views on this point. One identifies the state with government. The other holds that the state necessarily exists in its own right, in itself. The state is then said to create and use agencies that make up government. This is much like a man hiring servants and assigning them duties. This second view fits a theory that explains the state through a causal force. Some force, whether a general will or the individual wills of people gathered together, brings the state into existence. Then, in a second step, the state chooses certain people through whom to act. This theory helps its supporters preserve the idea that the state is inherently sacred. They can blame fallible and corrupt governments for the concrete political evils that history provides in abundance. Meanwhile, the state's honor remains untarnished. Identifying the state with government has the advantage of keeping our attention on concrete, observable facts. But this view creates an unexplained separation between rulers and people. If a government exists independently and for its own sake, why should government exist? Why should the habits of loyalty and obedience that allow government to rule continue?

The hypothesis which has been advanced frees us from the perplexities which cluster about both of these two notions. The lasting, extensive and serious consequences of associated activity bring into existence a public. In itself it is unorganized and formless. By means of officials and their special powers it becomes a state. A public articulated and operating through representative officers is the state; there is no state without a government, but also there is none without the public. The officers are still singular beings, but they exercise new and special powers. These may be turned to their private account. Then government is corrupt and arbitrary. Quite apart from deliberate graft, from using unusual powers for private glorification and profit, density of mind and pomposity of behavior, adherence to class-interest and its prejudices, are strengthened by position. “Power is poison” was the remark of one of the best, shrewdest and most experienced observers of Washington politicians. On the other hand, occupancy of office may enlarge a man’s views and stimulate his social interest so that he exhibits as a statesman traits foreign to his private life.

The hypothesis presented here frees us from the difficulties surrounding both of these ideas. The lasting, widespread, and serious consequences of people acting together bring a public into existence. On its own, the public is unorganized and has no definite form. Through officials and their special powers, the public becomes a state. The state is a public organized and acting through representative officials. There is no state without a government, but there is also no state without a public. Officials are still individuals, but they exercise new and special powers. They may use these powers for their private benefit. When they do, government becomes corrupt and arbitrary. Even without deliberate corruption or the use of special powers for personal glory and profit, holding office strengthens other failings. These include narrow-mindedness, pompous behavior, and loyalty to class interests and prejudices. “Power is poison” was the remark of one of the best, most perceptive, and most experienced observers of Washington politicians. On the other hand, holding office may broaden a man’s outlook and strengthen his concern for society. As a result, he may show qualities as a statesman that are absent from his private life.

But since the public forms a state only by and through officials and their acts, and since holding official position does not work a miracle of transubstantiation, there is nothing perplexing nor even discouraging in the spectacle of the stupidities and errors of political behavior. The facts which give rise to the spectacle should, however, protect us from the illusion of expecting extraordinary change to follow from a mere change in political agencies and methods. Such a change sometimes occurs, but when it does, it is because the social conditions, in generating a new public, have prepared the way for it; the state sets a formal seal upon forces already in operation by giving them a defined channel through which to act. Conceptions of “The State” as something per se, something intrinsically manifesting a general will and reason, lend themselves to illusions. They make such a sharp distinction between the state and a government that, from the standpoint of the theories, a government may be corrupt and injurious and yet The State by the same idea retain its inherent dignity and nobility. Officials may be mean, obstinate, proud and stupid and yet the nature of the state which they serve remain essentially unimpaired. Since, however, a public is organized into a state through its government, the state is as its officials are. Only through constant watchfulness and criticism of public officials by citizens can a state be maintained in integrity and usefulness.

But the public forms a state only through officials and their actions. And holding office does not miraculously transform a person’s nature. So there is nothing puzzling or even discouraging about the stupidity and errors we see in political behavior. However, the facts behind such behavior should protect us from an illusion. We should not expect extraordinary change merely from changing political institutions and methods. Such extraordinary change sometimes happens. But when change does happen, social conditions have prepared the way by creating a new public. The state formally recognizes forces already at work by giving those forces a defined channel for action. Ideas of “The State” as something existing in itself, inherently expressing a general will and reason, encourage illusions. Such theories draw so sharp a distinction between the state and a government that a government may be corrupt and harmful. Yet, according to these theories, The State can still retain its inherent dignity and nobility. Officials may be petty, stubborn, arrogant, and stupid. Yet the state those officials serve can supposedly remain essentially unharmed in its nature. But since a public is organized into a state through its government, the state is what its officials are. Only citizens’ constant vigilance and criticism of public officials can preserve a state’s integrity and usefulness.

The discussion also returns with some added illumination to the problem of the relation of state and society. The problem of the relation of individuals to associations—sometimes posed as the relation of the individual to society—is a meaningless one. We might as well make a problem out of the relation of the letters of an alphabet to the alphabet. An alphabet is letters, and “society” is individuals in their connections with one another. The mode of combination of letters with one another is obviously a matter of importance; letters form words and sentences when combined, and have no point nor sense except in some combination. I would not say that the latter statement applies literally to individuals, but it cannot be gainsaid that singular human beings exist and behave in constant and varied association with one another. These modes of conjoint action and their consequences profoundly affect not only the outer habits of singular persons, but their dispositions in emotion, desire, planning and valuing.

The discussion also sheds more light on the relationship between the state and society. The question of how individuals relate to associations is meaningless. Sometimes this question is framed as the relationship of the individual to society. We might as well question the relationship between the letters of an alphabet and the alphabet itself. An alphabet is letters, and “society” is individuals connected with one another. How letters combine is obviously important. Letters form words and sentences when combined, and have no purpose or meaning outside some combination. I would not say that this last statement applies literally to individuals. But there is no denying that individual human beings live and act in constant, varied association with one another. These forms of joint action and their consequences profoundly affect more than people's outward habits. They also shape people's emotional tendencies, desires, plans, and values.

“Society,” however, is either an abstract or a collective noun. In the concrete, there are societies, associations, groups of an immense number of kinds, having different ties and instituting different interests. They may be gangs, criminal bands; clubs for sport, sociability and eating; scientific and professional organizations; political parties and unions within them; families; religious denominations, business partnerships and corporations; and so on in an endless list. The associations may be local, nationwide and trans-national. Since there is no one thing which may be called society, except their indefinite overlapping, there is no unqualified eulogistic connotation adhering to the term “society.” Some societies are in the main to be approved; some to be condemned, on account of their consequences upon the character and conduct of those engaged in them and because of their remoter consequences upon others. All of them, like all things human, are mixed in quality; “society” is something to be approached and judged critically and discriminatingly. “Socialization” of some sort—that is, the reflex modification of wants, beliefs and work because of share in a united action—is inevitable. But it is as marked in the formation of frivolous, dissipated, fanatical, narrow-minded and criminal persons as in that of competent inquirers, learned scholars, creative artists and good neighbors.

“Society,” however, is either an abstract term or a collective noun. In practice, there are societies, associations, and groups of countless kinds, with different ties and different interests. These may include gangs and criminal bands, clubs for sports, socializing, and dining, and scientific and professional organizations. They may also include political parties and groups within them, families, religious denominations, business partnerships, and corporations. The list goes on endlessly. These associations may be local, nationwide, or international. There is no single thing called society, apart from the countless ways these associations overlap. So the term “society” does not, by itself, deserve unqualified praise. Some societies should mainly be approved of, and some condemned. These judgments depend on their effects on members’ character and behavior, and on their more distant effects on others. All these associations, like all things human, have mixed qualities. “society” must be approached and judged critically, with careful attention to differences. Some kind of “Socialization” is inevitable. That means the changes in wants, beliefs, and work that result from taking part in joint action. But socialization shapes frivolous, self-indulgent, fanatical, narrow-minded, and criminal people just as strongly as anyone else. It is equally evident in the development of capable investigators, learned scholars, creative artists, and good neighbors.

Confining our notice to the results which are desirable, it appears that there is no reason for assigning all the values which are generated and maintained by means of human associations to the work of states. Yet the same unbridled generalizing and fixating tendency of the mind which leads to a monistic fixation of society has extended beyond the hypostatizing of “society” and produced a magnified idealization of The State. All values which result from any kind of association are habitually imputed by one school of social philosophers to the state. Naturally the result is to place the state beyond criticism. Revolt against the state is then thought to be the one unforgivable social sin. Sometimes the deification proceeds from a special need of the time, as in the cases of Spinoza and Hegel. Sometimes it springs from a prior belief in universal will and reason and a consequent need of finding some empirical phenomena which may be identified with the externalization of this absolute spirit. Then this is employed, by circular logic, as evidence for the existence of such a spirit. The net import of our discussion is that a state is a distinctive and secondary form of association, having a specifiable work to do and specified organs of operation.

If we consider only desirable results, there seems no reason to credit states with all the benefits human associations create and sustain. Yet the mind has an unchecked tendency to generalize and treat abstractions as fixed realities. This tendency leads people to view society as a single, unified thing. It has also gone beyond treating “society” as a real entity to produce an exaggerated idealization of The State. One school of social philosophers routinely credits the state with all the benefits that arise from any kind of association. Naturally, the result is to place the state beyond criticism. Revolt against the state is then considered the one unforgivable social sin. Sometimes this worship of the state arises from a particular need of the time, as with Spinoza and Hegel. Sometimes it stems from a prior belief in universal will and reason. That belief then creates a need to find observable phenomena that may be identified as outward expressions of this absolute spirit. These phenomena are then used, through circular reasoning, as evidence that such a spirit exists. The overall point of our discussion is that a state is a distinct, secondary form of association. It has a task that can be clearly defined and specific bodies through which it operates.

It is quite true that most states, after they have been brought into being, react upon the primary groupings. When a state is a good state, when the officers of the public genuinely serve the public interests, this reflex effect is of great importance. It renders the desirable associations solider and more coherent; indirectly it clarifies their aims and purges their activities. It places a discount upon injurious groupings and renders their tenure of life precarious. In performing these services, it gives the individual members of valued associations greater liberty and security: it relieves them of hampering conditions which if they had to cope with personally would absorb their energies in mere negative struggle against evils. It enables individual members to count with reasonable certainty upon what others will do, and thus facilitates mutually helpful coöperations. It creates respect for others and for one’s self. A measure of the goodness of a state is the degree in which it relieves individuals from the waste of negative struggle and needless conflict and confers upon him positive assurance and reënforcement in what he undertakes. This is a great service, and there is no call to be niggardly in acknowledging the transformations of group and personal action which states have historically effected.

It is quite true that most states, once established, in turn affect the groups from which they arose. When a state is good, its public officials genuinely serve the public interest. Under these conditions, the state’s effect on those groups is very important. The state makes beneficial associations stronger and more united. Indirectly, it makes their aims clearer and removes harmful elements from their activities. It discourages harmful groups and makes their continued existence uncertain. By providing these services, the state gives individual members of valued associations greater freedom and security. It frees them from obstacles that would otherwise consume their energy in merely fighting harmful conditions on their own. It lets individual members predict with reasonable confidence what others will do, making mutually helpful cooperation easier. It creates respect for others and for oneself. One measure of a state’s goodness is how far it frees individuals from wasted effort in defensive struggles and needless conflict. Another part of that measure is how much confidence and support it gives individuals in what they undertake. This is a great service. We should fully acknowledge how states have historically transformed group and individual action.

But this recognition cannot be legitimately converted into the monopolistic absorption of all associations into The State, nor of all social values into political value. The all-inclusive nature of the state signifies only that officers of the public (including, of course, law-makers) may act so as to fix conditions under which any form of association operates; its comprehensive character refers only to the impact of its behavior. A war like an earthquake may “include” in its consequences all elements in a given territory, but the inclusion is by way of effects, not by inherent nature or right. A beneficent law, like a condition of general economic prosperity, may favorably affect all interests in a particular region, but it cannot be called a whole of which the elements influenced are parts. Nor can the liberating and confirming results of public action be construed to yield a wholesale idealization of states in contrast with other associations. For state activity is often injurious to the latter. One of the chief occupations of states has been the waging of war and the suppression of dissentient minorities. Moreover, their action, even when benign, presupposes values due to non-political forms of living together which are but extended and reënforced by the public through its agents.

But this recognition cannot justify absorbing all associations into The State or reducing all social values to political value. The state’s all-inclusive nature means only that public officials may set the conditions under which any form of association operates. These officials include, of course, lawmakers. The state’s broad reach refers only to the effects of its actions. A war, like an earthquake, may “include” all elements in a given territory through its consequences. But this inclusion comes through effects, not through any inherent nature or right. A beneficial law, like general economic prosperity, may benefit all interests in a particular region. But the law cannot be called a whole whose parts are the interests it affects. Nor do the freeing and strengthening effects of public action justify idealizing states across the board over other associations. For state activity often harms those other associations. Waging war and suppressing dissenting minorities have been among states’ main activities. Moreover, even beneficial state action depends on values created by nonpolitical forms of living together. The public, acting through its agents, only extends and strengthens those values.

The hypothesis which we have supported has obvious points of contact with what is known as the pluralistic conception of the state. It presents also a marked point of difference. Our doctrine of plural forms is a statement of a fact: that there exist a plurality of social groupings, good, bad and indifferent. It is not a doctrine which prescribes inherent limits to state action. It does not intimate that the function of the state is limited to settling conflicts among other groups, as if each one of them had a fixed scope of action of its own. Were that true, the state would be only an umpire to avert and remedy trespasses of one group upon another. Our hypothesis is neutral as to any general, sweeping implications as to how far state activity may extend. It does not indicate any particular polity of public action. At times, the consequences of the conjoint behavior of some persons may be such that a large public interest is generated which can be fulfilled only by laying down conditions which involve a large measure of reconstruction within that group. There is no more an inherent sanctity in a church, trade-union, business corporation, or family institution than there is in the state. Their value is also to be measured by their consequences. The consequences vary with concrete conditions; hence at one time and place a large measure of state activity may be indicated and at another time a policy of quiescence and laissez-faire. Just as publics and states vary with conditions of time and place, so do the concrete functions which should be carried on by states. There is no antecedent universal proposition which can be laid down because of which the functions of a state should be limited or should be expanded. Their scope is something to be critically and experimentally determined.

The hypothesis we have supported has clear connections with what is known as the pluralistic view of the state. But our hypothesis also differs from that view in an important way. Our account of multiple social groups states a fact: many social groups exist, some good, some bad, and some neither. Our account does not set inherent limits on state action. Nor does our account suggest that the state's role is limited to settling conflicts among other groups. Such a limit would assume that each group had its own fixed sphere of action. If that were true, the state would merely act as a referee, preventing and correcting one group's intrusions on another. Our hypothesis takes no position on broad, general claims about how far state action may extend. Nor does our hypothesis prescribe any particular policy for public action. At times, the effects of some people's joint actions may create a major public interest. Meeting that interest may require setting conditions that involve substantial changes within the group. A church, trade union, business corporation, or family institution is no more inherently sacred than the state. The value of these groups must also be judged by their consequences. Those consequences vary with specific conditions. So extensive state action may be called for in one time and place, and nonintervention and laissez-faire in another. Just as publics and states vary with time and place, so do the specific functions states should perform. No universal principle established in advance can justify limiting or expanding a state's functions. The scope of those functions must be determined through critical inquiry and experimentation.