Page:A Jewish State 1917.djvu/49

 NEGOTIORUM GESTIO.

pamphlet is not intended for lawyers. I can therefore only touch cursorily, as I have so often done, upon my theory of the legal basis of a State.

I must, nevertheless, lay some stress on my new theory, which could be maintained, I believe, even in discussion with men well versed in jurisprudence.

According to Rousseau's now antiquated view, a State is formed by a social contract. Rousseau held that: "The conditions of this contract are so precisely defined by the nature of the agreement that the slightest alteration would make them null and void. The consequence is that, even where they are not expressly stated, they are everywhere identical, and everywhere tacitly accepted and recognized," etc.

A logical and historic refutation of Rousseau's theory was never, nor is now, difficult, however terrible and far-reaching its effects may have been. The question whether a social contract with "conditions not expressly stated, yet unalterable," existed before the framing of a constitution, is a question of little actual interest to States under modern forms of government. The legal relationship between government and citizen is in any case clearly established now.

But previous to the framing of a constitution, and during the creation of a new State, these principles assume great practical importance. We know and see for ourselves that States still continue to be created. Colonies secede from the mother country. Vassals fall away from their suzerain; newly opened territories are immediately formed into free States. It is true that the Jewish State is conceived as a peculiarly modern structure on unspecified territory. But a State is formed, not by pieces of land, but rather by a number of men united under sovereign rule.

Man is the human, land the objective, groundwork of a State; the human basis being the more important of the two. One supremacy, for example, which has no objective basis at all is perhaps more respected than any in the world, and this is the supremacy of the Pope.