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III

LAW AS A SOVEREIGN DECREE

The State, as it exists, is neither exclusively the embodiment of force nor the perfect realization of a human ideal. It is, on the contrary, a compromise between inherited conditions on the one hand and successive social reforms on the other. It is, in part, the work of Nature, which has imposed upon men certain necessities from which, even by their united efforts, they cannot entirely free themselves; and, in part,

, the work of Reason, which has striven, with some success, to surmount the obstacles arising from the appetites, the enmities, and the ambitions of mankind.

Food, raiment, shelter, and other subsidiary commodities are essential to human existence and well-being. To produce these, human activity is necessary; and, to divide and distribute them in a satisfactory manner, so that each may possess and enjoy his own and receive the just fruits of his labor, it has been needful to devise obligatory rules of action, imposing upon each individual in the community certain duties of performance and certain obligations of restraint.

To define and enforce these rules of action is the recognized function of the State. In the most primitive and rudimentary forms of society, in which the population was nearly homogeneous and the tasks of life were nearly uniform, the inherited customs of the community furnished, for the most part, the rules of conduct. Whatever else was necessary for the regulation of life was determined by the chief person or persons in the community, whose decisions had the force of law. With the growing com

plexity of social relations, new rules were constantly required; and, in time, when the necessary level of culture was attained, each community, according to its form of organization, added to the customary usages

and traditional precepts more definite prescriptions of conduct in the shape of written regulations.

Without entering upon the details of legal history, it is sufficient for our purpose to call attention to the fact, that, with the differentiation of the community into a “governing” and a “governed” class, the process of law-making assumed the form of legislation by decree. Whatever the specific type of the law-making power, whether that of popular assemblies or of individual autocrats, the power that made the laws gradually came to be regarded as possessing unlimited authority to do so. In this manner grew up the conception of an imperium, a majestas, or "sovereignty,” charged with the function, and possessing the exclusive right, of determining the rules of action which the community must ob

serve.

That such a delegation of power was necessary as well as convenient, is evident; for legislation en masse by any community of men in a complex condition of society is hardly conceivable. But the development, through centuries of time, of the idea that there exists somewhere an exclusive sovereign power, whose sphere is undefined, whose operation is incessant, whose decrees are materially irresistible, and whose authority is, therefore, not to be questioned, has introduced into the world a cause of disturbance which has profoundly affected not only the realm of thought but the field of action. It has sown the seeds of inconsequence in the theories of government, and of revolution in the minds of overburdened populations.

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