View metadata, citation and similar papers at core.ac.

uk brought to you by CORE

provided by Institutional Knowledge at Singapore Management University

Singapore Management University

Institutional Knowledge at Singapore Management University
Research Collection School of Social Sciences School of Social Sciences

1-2014

A definition of the state

Chandran KUKATHAS
Singapore Management University, kukathas@smu.edu.sg

Follow this and additional works at: https://ink.library.smu.edu.sg/soss_research

Part of the Political Theory Commons

Citation
KUKATHAS, Chandran.(2014). A definition of the state. University of Queensland Law Journal, 33(2), 357-366.
Available at: https://ink.library.smu.edu.sg/soss_research/2917

This Journal Article is brought to you for free and open access by the School of Social Sciences at Institutional Knowledge at Singapore Management
University. It has been accepted for inclusion in Research Collection School of Social Sciences by an authorized administrator of Institutional
Knowledge at Singapore Management University. For more information, please email libIR@smu.edu.sg.
Published in University of Queensland Law Journal,
Vol 33, Issue 2, 2014, Pages 357–366

357

A DEFINITION OF THE STATE

CHANDRAN KUKATHAS*

I THE PROBLEM OF DEFINING THE STATE

A state is a form of political association, and political association is itself only

one form of human association. Other associations range from clubs to business
enterprises to churches. Human beings relate to one another, however, not only in
associations but also in other collective arrangements, such as families, neighborhoods,
cities, religions, cultures, societies, and nations. The state is not the only form of
political association. Other examples of political associations include townships,
counties, provinces, condominiums, territories, confederations, international
organisations (such as the UN) and supranational organisations (such as the EU). To
define the state is to account for the kind of political association it is, and to describe
its relation to other forms of human association, and to other kinds of human
collectivity more generally. This is no easy matter for a number of reasons. First, the
state is a form of association with a history, so the entity that is to be described is one
that has evolved or developed and, thus, cannot readily be captured in a snapshot.
Second, the concept of the state itself has a history, so any invocation of the term will
have to deal with the fact that it has been used in subtly different ways. Third, not all
the entities that claim to be, or are recognised as, states are the same kinds of entity,
since they vary in size, longevity, power, political organisation and legitimacy. Fourth,
because the state is a political entity, any account of it must deploy normative concepts
– such as legitimacy – that are themselves as contentious as the notion of the state.
Although the state is not uniquely difficult to define, these problems need to be
acknowledged.
The aim of this paper is to try to offer a definition of the state that is sensitive to
these difficulties. More particularly, it seeks to develop an account of the state that is
not subject to the problems that beset alternative explanations that have been
prominent in political theory. The main points it defends are these. 1) The state should
not be viewed as a form of association that subsumes or subordinates all others. 2) The
state is not an entity whose interests map closely onto the interests of the groups and
individuals that fall under its authority, but has interests of its own. 3) The state is, to
some extent at least, an alien power; though it is of human construction, it is not within
human control. 4) The state is not there to secure people’s deepest interests, and it does
not serve to unify them, reconcile them with one another, bring their competing
interests into harmony, or realise any important good – such as justice, freedom, or
peace. While its power might be harnessed from time to time, that will serve the
interests of some, not the interests of all. 5) The state is thus an institution through
which individuals and groups seek to exercise power (though it is not the only such
institution); but it is also an institution that exercises power over individuals and
groups. 6) The state is, ultimately, an abstraction, for it has no existence as a material
object, is not confined to a particular space, and is not embodied in any person or
collection of persons. The state exists because certain relations obtain between people;
but the outcome of these relations is an entity that has a life of its own – though it
would be a mistake to think of it as entirely autonomous – and to define the state is to
try to account for the entity that exists through these relations.

*
Chair in Political Theory, Department of Government, London School of Economics.
358 University of Queensland Law Journal 2014

II THE CONCEPT OF THE STATE

A state is a form of political association or polity that is distinguished by the fact

that it is not itself incorporated into any other political associations, though it may
incorporate other such associations. The state is thus a supreme corporate entity
because it is not incorporated into any other entity, even though it might be subordinate
to other powers (such as another state or an empire). One state is distinguished from
another by its having its own independent structure of political authority, and an
attachment to separate physical territories. The state is itself a political community,
though not all political communities are states. A state is not a nation, or a people,
though it may contain a single nation, parts of different nations, or a number of entire
nations. A state arises out of society, but it does not contain or subsume society. A state
will have a government, but the state is not simply a government, for there exist many
more governments than there are states. The state is a modern political construction
that emerged in early modern Europe, but has been replicated in all other parts of the
world. The most important aspect of the state that makes it a distinctive and new form
of political association is its most abstract quality: it is a corporate entity.
To understand this formulation of the idea of a state we need to understand the
meaning of the other terms that have been used to identify it, and to distinguish it from
other entities. The state is a political association. An association is a collectivity of
persons joined for the purpose for carrying out some action or actions. An association
thus has the capacity for action or agency, and because it is a collectivity it must
therefore also have some structure of authority through which one course of action or
another can be determined. Since authority is a relation that exists only among agents,
an association is a collectivity of agents. Other collectivities of persons, such as classes
or crowds or neighborhoods or categories (like bachelors or smokers or amputees) are
not associations, for they do not have the capacity for agency and have no structures of
authority to make decisions. A mob is not an association: even though it appears to act,
it is no more an agent than is a herd.
On this understanding, society is not itself an association, for it is not an agent. It
may be made up of or contain a multiplicity of associations and individual agents, but
it is not an association or agent. Unless, that is, it is constituted as one by an act or
process of incorporation. So, for example, Californian society is not an association, but
the state of California is: for while a society is not, a polity is an association – a
political association. In pre-civil war America, the southern states were a society, since
they amounted to a union of groups and communities living under common laws –
some of which sharply distinguished it from the North – but they did not form a single
(political) association until they constituted themselves as the Confederacy. A society
is a collectivity of people who belong to different communities or associations that are
geographically contiguous. The boundaries of a society are not easy to specify, since
the contiguity of societies makes it hard to say why one society has been left and
another entered. One way of drawing the distinction would be to say that, since all
societies are governed by law, a move from one legal jurisdiction to another is a move
from one society to another. But this has to be qualified because law is not always
confined by geography, and people moving from one region to another may still be
bound by laws from their places of origin or membership. Furthermore, some law deals
with relations between people from different jurisdictions. That being true, however, a
society could be said to exist when there is some established set of customs or
conventions or legal arrangements specifying how laws apply to persons whether they
stay put or move from one jurisdiction to another. (Thus there was not much of a
society among the different highland peoples of New Guinea when they lived in
Vol 33(2) A Definition of the State 359

isolation from one another, though there was a society in Medieval Spain when Jews,
Muslims and Christians coexisted under elaborate legal arrangements specifying rights
and duties individuals had within their own communities and as outsiders when in
others.)
A society is different, however, from a community, which is in turn different
from an association. A community is a collectivity of people who share some common
interest and who therefore are united by bonds of commitment to that interest. Those
bonds may be relatively weak, but they are enough to distinguish communities from
mere aggregates or classes of person. However, communities are not agents and thus
are not associations: they are marked by shared understandings but not by shared
structures of authority. At the core of that shared understanding is an understanding of
what issues or matters are of public concern to the collectivity and what matters are
private. Though other theories of community have held that a community depends for
its existence on a common locality (Robert McIver) or ties of blood kinship (Ferdinand
Tönnies), this account of community allows for the possibility of communities that
cross geographical boundaries. Thus, while it makes perfect sense to talk of a village or
a neighborhood as a community, it makes no less sense to talk about, say, the
university community, or the scholarly community, or the religious community. One of
the important features of a community is the fact that its members draw from it
elements that make up their identities – though the fact that individuals usually belong
to a number of communities means that it is highly unlikely (if not impossible) that an
identity would be constituted entirely by membership of one community. For this
reason, almost all communities are partial communities rather than all-encompassing
or constitutive communities.
An important question, then, is whether there can be such a thing as a political
community, and whether the state is such a community. On this account of community,
there can be a political community, which is defined as a collectivity of individuals
who share an understanding of what is public and what is private within that polity.
Whether or not a state is a political community will depend, however, on the nature of
the state in question. States that are divided societies are not political communities.
Iraq after the second Gulf War, and Sri Lanka since the civil war (and arguably
earlier), are not political communities because there is serious disagreement over what
comprises the public. Arguably, Belgium is no longer a political community, though it
remains a state.
Now, there is one philosopher who has denied that a political society or a state –
or at least, ‘a well-ordered democratic society’ – can be a community. According to
John Rawls, such a society is neither an association nor a community. A community,
he argues, is ‘a society governed by a shared comprehensive, religious, philosophical,
or moral doctrine’.1 Once we recognise the fact of pluralism, Rawls maintains, we
must abandon hope of political community unless we are prepared to countenance the
oppressive use of state power to secure it.2 However, this view rests on a very narrow
understanding of community as a collectivity united in affirming the same
comprehensive doctrine. It would make it impossible to recognise as communities a
range of collectivities commonly regarded as communities, including neighborhoods
and townships. While some common understanding is undoubtedly necessary, it is too
much to ask that communities share as much as a ‘comprehensive doctrine’. On a
broader understanding of community, a state can be a political community. However, it
should be noted that on this account political community is a much less substantial

1
John Rawls, Political Liberalism (Columbia University Press, 2nd ed, 1996) 42.
2
Ibid 146.
360 University of Queensland Law Journal 2014

thing than many might argue. It is no more than a ‘partial community’, being only one
of many possible communities to which individuals might belong.
Though a state may be a political community, it need not be. Yet it must always
be an association: a collectivity with a structure of authority and a capacity for agency.
What usually gives expression to that capacity is the state’s government. Government
and the state are not however, the same thing. States can exist without governments
and frequently exist with many governments. Not all governments have states.
Australia, for example, has one federal government, six state governments, two
territorial governments, and numerous local governments. The United States, Canada,
Germany, Malaysia and India are just a few of the many countries with many
governments. States that have, for at least a time, operated without governments (or at
least a central government) include Somalia from 1991 to 2000 (de facto, 2002), Iraq
from 2003 to 2004, and Japan from 1945 to 1952 (when the postwar Allied occupation
came to an end). Many governments are clearly governments of units within federal
states. But there can also be governments where there are no states: the Palestinian
Authority is one example.
Government is an institution whose existence precedes that of the state. A
government is a person or group of persons who rule or administer (or govern) a
political community or a state. For government to come into being there must exist a
public. Ruling within a household is not government. Government exists when people
accept (willingly or not) the authority of some person or persons to address matters of
public concern: the provision of non-excludable goods, the administration of justice,
and defence against external enemies being typical examples of such matters. Until the
emergence of the state, however, government did not attend to the interests of a
corporate entity but administered the affairs of less clearly defined or demarcated
publics. With the advent of the state, however, government became the established
administrative element of a corporate entity.
The question now is: what does it mean to say that a state is a corporate entity?
The state is a corporation in the way that a people or a public cannot be. It is a
corporation because it is, in effect and in fact, a legal person. As a legal person a
corporation not only has the capacity to act but also a liability to be held responsible.
Furthermore, a corporation is able to hold property. This is true for incorporated
commercial enterprises, for institutions like universities and churches, and for the state.
A corporation cannot exist without the natural persons who comprise it – and there
must be more than one, for a single individual cannot be a corporation. But the
corporation is also a person separate from the persons who comprise it. Thus a public
company has an existence because of its shareholders, its agents and their employees,
but its rights and duties, powers and liabilities, are not reducible to, or definable in
terms of, those of such natural persons. A church or a university has an existence
because of the officers who run them and the members who give them their point, but
the property of such an entity does not belong to any of these individuals. The state is a
corporation in the same way that these other entities are: it is a legal person with rights
and duties, powers and liabilities, and holds property that accrues to no other agents
than itself. The question in political theory has always been not whether such an entity
can come into existence (since it plainly has) but how it does so. This is, in a part, a
question of whether its existence is legitimate.
The state is not, however, the only possible political corporation. Provinces,
counties, townships, and districts, as well as condominiums (such as Andorra), some
international organisations, and supranational organisations are also political
corporations but not states. A state is a supreme form of political corporation because it
is able to incorporate within its structure of authority other political corporations (such
as provinces and townships) but is not subject to incorporation by others (such as
supranational organisations). Political corporations the state is unable to incorporate
Vol 33(2) A Definition of the State 361

are themselves therefore states. Any state incorporated by any other political
corporation thereby ceases to be a state. By this account, prior to the American Civil
War, the various states of the Union were not provinces of the United States but fully
independent states. After the war, to the extent that the war established that no state
could properly secede or cease to be incorporated into the one national state, the
United States became a fully independent state and not a supranational organisation.
The significance of the capacity for political corporations to hold property ought
to be noted. Of critical importance is the fact that this property does not accrue to
individual persons. Revenues raised by such corporations by the levying of taxes, or
the imposition of tariffs or licensing fees, or by any other means, become the property
of the corporation – not of particular governments, or officials, or monarchs, or any
other natural person who is able to exercise authority in the name of the corporation.
The political corporation, being an abstract entity, cannot enjoy the use of its property
– only redistribute it among the agents through whom it exercises power and among
others whom those agents are able, or obliged, to favour. The state is not the only
political corporation capable of raising revenue and acquiring property, though it will
generally be the most voracious in its appetite.
One question that arises is whether the best way to describe the state is as a
sovereign power. The answer depends on how one understands sovereignty. If
sovereignty means ‘supreme authority within a territory’3, it is not clear that
sovereignty captures the nature of all states. In the United States, the American state
incorporates the 50 states of the union, so those states are not at liberty to withdraw
from the union. However, authority of the various states and state governments does
limit the authority of the American state, which is unable to act unilaterally on a range
of issues. To take just one example, it cannot amend the Constitution without the
agreement of three-quarters of the states. Indeed many national states find themselves
constrained not just because they exist as federated polities but because their
membership of other organisations and associations, as well as their treaty
commitments, limit what they can legally do within their own territorial boundaries.
Sovereignty could, on the other hand, be taken to be a matter of degree; but this would
suggest that it is of limited use in capturing the nature of states and distinguishing them
from other political corporations.
One aspect of being a state that is sometimes considered best identified by the
concept of sovereignty is its territoriality. People belong to a state by virtue of their
residence within borders, and states, it is argued, exercise authority over those within
its geographical bounds. While it is important to recognise that states must possess
territory in order to exist, they are not unique in having geographical extension.
Provinces, townships, and supranational entities such as the EU are also defined by
their territories. Moreover, residence within certain borders does not make people
members of that state any more than it removes them from the authority of another
under whose passport they might travel. Nor is the state’s capacity to control the
movement of people within or across its territory essential to its being a state, for many
states have relinquished that right to some degree by membership of other associations.
Citizens of the EU have the right to travel to and reside in other member states. To
exist, states must have territory; but not entire control over such territory. Weber’s
well-known definition of the state as a body having a monopoly on the legitimate use
of physical force in a given territory is also inadequate. The extent of a state’s control,
including its control of the means of using violence, varies considerably with the state,
not only legally but also in fact.

3
Daniel Philpott, ‘Sovereignty’ (2010) Stanford Encyclopedia of Philosophy
<http://plato.stanford.edu/entries/sovereignty/>.
362 University of Queensland Law Journal 2014

Though they are supreme corporate entities, states do not always exist in
isolation, and usually stand in some relation to other forms of political association
beyond their territorial borders. States may belong to international organisations such
as the United Nations or alliances such as NATO. They may be a part of supranational
associations that are loosely integrated defence and trading blocs (such as ASEAN) or
more substantially integrated governmental associations (such as the EU). They might
be members of international regimes, such as the International Refugee Convention, as
a result of agreements they have entered into. States might also be parts of empires, or
operate under the sphere of influence of another more powerful state. States might exist
as associated states – as was the case with the Philippines, which was from 1935-46
the first associated state of the United States. The Filipino state was responsible for
domestic affairs, but the US handled foreign and military matters. Even today, though
in different circumstances, the foreign relations of a number of states are handled by
other states – Spain and France are responsible for Andorra, Switzerland for
Liechtenstein, France for Monaco, and India for Bhutan. States can also bear
responsibility for territories with the right to become states but which have not yet (and
may never) become states. Puerto Rico, for example, is an unincorporated territory of
the United States, whose residents are unenfranchised American citizens, enjoying
limited social security benefits, but not subject to Federal income tax; it is unlikely to
become an independent state.
The state is, in the end, only one form of political association. Indeed, the range
of different forms of political association and government even in recent history is
astonishing. The reason for paying the state as much attention as it is given is that it is,
in spite of the variety of other political forms, the most significant type of human
collectivity at work in the world today.

III A THEORY OF THE STATE

According to Martin Van Creveld, the state emerged because of the limitations of
the innumerable forms of political organisation that existed before it.4 The crucial
innovation that made for development of the state was the idea of the corporation as a
legal person, and thus of the state as a legal person. In enabled the emergence of a
political entity whose existence was not tied to the existence of particular persons –
such as chiefs, lords and kings – or particular groups – such as clans, tribes, and
dynasties. The state was an entity that was more durable. Whether or not this
advantage was what caused the state to emerge, it seems clear enough that such an
entity did come into being. The modern state represents a different form of governance
than was found under European feudalism, or in the Roman Empire, or in the Greek
city-states.
Having accounted for the concept of the state, however, we now need to consider
what kind of theory of the state might best account for the nature of this entity. Ever
since the state came into existence, political philosophers have been preoccupied with
the problem of giving an account of its moral standing. To be sure, philosophers had
always asked why individuals should obey the law, or what, if anything, could justify
rebellion against a king or prince. But the emergence of the state gave rise to a host of
new theories that have tried to explain what relationship people could have, not to
particular persons or groups of persons with power or authority over them, but to a
different kind of entity.
To explain the emergence of the state in Europe from the 13th to the 19th centuries
would require an account of many things, from the decline of the power of the church

4
Van Creveld, The Rise and Decline of the State (Cambridge University Press, 1999) 52-8.
Vol 33(2) A Definition of the State 363

against kingdoms and principalities to the development of new political power

structures with the transformation and eventual disappearance of the Holy Roman
Empire; from the disappearance of towns and city-states, and extended associations
like the Hanseatic League, to the rise of movements of national unification. Attempts
by theorists to describe the state that was emerging are as much a part of the history of
the state as are the political changes and legal innovations. Bodin, Hobbes, Spinoza,
Locke, Montesquieu, Hume, Rousseau, Madison, Kant, Bentham, Mill, Hegel,
Tocqueville, and Marx were among the most insightful thinkers to offer theories of the
state during the course of its emergence, though theorising went on well into the 20th
century in the thought of Max Weber, the English pluralists, various American
democratic theorists, and Michael Oakeshott. They offered theories of the state in the
sense that they tried to explain what it was that gave the state its point: how it was that
the existence of the state made sense. To some, this meant also justifying the state,
though for the most part this was not the central philosophical concern. (Normative
theory, so called, is probably a relatively recent invention.)
The question, however, remains: what theory best accounts for the state? Since
there is time and space only for some suggestions rather than for a full-scale defence of
a new theory of the state, I shall come to the point. The theorist who gives us the best
theory of the state we have so far is Hume, and any advance we might make should
build on Hume’s insights. To appreciate what Hume has to offer, we should consider
briefly what the main alternatives are, before turning again to Hume.
We might usefully do this by posing the question in a way that Hume would have
appreciated: what interest does the state serve? Among the first answers to be offered
was that presented, with different reasoning, by Bodin and Hobbes: the interest of
everyone in peace or stability or order. Each developed this answer in politically
similar circumstances: religious wars that reflected the declining power of a church
trying to hold on to political influence. Both thinkers defended conceptions of the state
as absolutist (or at least highly authoritarian) to make clear that the point of the state
was to preserve order in the face of challenges to the peace posed by the Church or by
proponents of group rights such as the Monarchomachs. The state was best understood
as the realm of order, to be contrasted with the state of war signified by its absence and
threatened by its dereliction. Crucially, for both thinkers, the state had to be conceived
as a single sovereign entity, whose powers were not divided or to be shared either by
different branches of government or by different elements in a mixed constitution.
Among the problems with this view is that it is not clear that the state is needed to
secure order, nor plausible to think that divided government is impossible. The
conception of the state as the condition in which order is possible looks unlikely not
only because the state may sometimes act in ways that are destructive of order (and
even self-destructive) but also because order has existed without states. Indeed, one of
the problems for Hobbes’s social theory in particular is explaining how the state could
come into being if it really is the result of agreement voluntarily to transfer power to a
corporate agent – since the state of war is not conducive to making or keeping
agreements. It does not look as though the point of the state is to serve our interest in
order – even if that were our sole or primary interest.
Another view of the point of the state is that it serves our interest in freedom.
Two theories of this kind were offered by Rousseau and Kant. In Rousseau’s account,
the emergence of society brings with it the loss of a kind of freedom as natural man is
transformed into a social being ruled directly and indirectly by others. The recovery of
this freedom is not entirely possible, but freedom of a kind is attainable in the state,
which is the embodiment of the general will. Living in such a state we can be free as
beings who are, ultimately, subject not to others but to laws we give ourselves.
Drawing inspiration from Rousseau’s conception of freedom, Kant presents a slightly
364 University of Queensland Law Journal 2014

different contractarian story, but one with a similarly happy ending. The antithesis of
the state is the state of nature, which is a state of lawless freedom. In that condition, all
are morally obliged to contract with one another to leave that state to enter a juridical
realm in which freedom is regulated by justice – so that the freedom of each can be
compatible with the freedom of all. The state serves our interest in freedom by first
serving our interest in justice. If Hobbes thought that whatever the state decreed was,
eo ipso, just; Kant held that justice presupposed the existence of the state. What’s
difficult to see in Kant’s account is why there is any obligation for everyone in the
state of nature to enter a single juridical realm, rather than simply to agree to abide by
the requirements of morality or form different ethical communities. Why should
freedom require the creation of a single juridical order? It is no less difficult to see why
the state might solve the problem of freedom in Rousseau’s account. If, in reality, there
is a conflict between different interests, and some can prevail only at the expense of
others, it seems no better than a cover-up to suggest that all interests are served equally
well since all are free when governed by laws that reflect the general will. If this is the
case, the state serves our interest in freedom only by feeding us the illusion that we are
free when in fact we are subordinated to others.
Hegel also thinks that our deepest interest is in freedom, but for him it can only
be fully enjoyed when we live in a community in which the exercise of that freedom
reflects not simply the capacity of particular wills to secure their particular interests but
the existence of an ethical life in which conflicts of interest are properly mediated and
reconciled. The institution that achieves this is the state, which takes us out of the
realm of particularity into the realm of concrete universality: a realm in which freedom
is given full expression because, for the first time, people are able to relate to one
another as individuals. This is possible because the state brings into existence
something that eluded people in society before the state came into being: a form of
ethical life in which, at last, people can feel at home in the world.
The most serious challenge to Hegel’s view is that offered by Marx. The state
might appear to be the structure within which conflicts of interest were overcome as
government by the universal class – Hegel’s state bureaucracy – acted to serve only the
universal interest, but in reality the state did no more than masquerade as the defender
of the universal interest. The very existence of the state, Marx argued, was evidence
that particularity had not been eliminated, and discrete interests remained in destructive
competition with one another. More specifically, this conflict remained manifest in the
class divisions in society, and the state could never amount to more than a vehicle for
the interests of the ruling class. Freedom would be achieved not when the state was
fulfilled but when it was superseded.
What is present in Marx but missing in the previously criticised theories is a keen
sense that the state might not so much serve human interests in general as serve
particular interests that have managed to capture it for their own purposes. This is why,
for Marx, social transformation requires, first, the capture by the working class of the
apparatus of the state. The cause of human freedom would be served, however, only
when the conditions that made the state inevitable were overcome: scarcity and the
division of labour, which brought with them alienation, competition and class conflict.
What is most persuasive in Marx’s analysis is his account of the state as an
institution that embodies the conflict of interest found in the world rather than as one
that reconciles competing interests. What is less convincing, however, is the
expectation that particular interests will one day be eradicated. What is missing is any
sense that the state itself has its own interests, as well as being the site through which a
diverse range of interests compete to secure their own advantage. To gain an
appreciation of these dimensions of the state, we need to turn, at least initially, to
Hume.
Vol 33(2) A Definition of the State 365

Hume’s theory of the state does not appear conveniently in any one part of his
political writings, which address a variety of issues but not this one directly. His
analysis is to be found in part in his Treatise, in an even smaller part of his second
Enquiry, in his Essays, and in his multi-volume History of England. What can be
gleaned from these writings is Hume’s view of the state as an entity that emerged in
history, in part because the logic of the human condition demanded it, in part because
the nature of strategic interactions between individuals made it probable, and finally
because accidents of history pushed the process in one way or another.
The first step in Hume’s analysis is to explain how society is possible, given that
the facts of human moral psychology suggest cooperation is unprofitable. The answer
is that repeated interactions reveal to individuals the advantage of cooperating with
potential future cooperators and out of this understanding conventions are born. The
emergence of society means the simultaneous emergence therefore of two other
institutions without which the idea of society is meaningless: justice and property.
Society, justice and property co-exist, for no one of them can have any meaning
without the other two. What these institutions serve are human interests – interests in
prospering in a world of moderate scarcity. Interest accounts for the emergence of
other institutions, such as law, and government, though in these cases there is an
element of contingency. Government arises because of war, as eminent soldiers come
to command authority among their men and then extend that authority to their groups
more broadly. Law develops in part as custom becomes entrenched and is then further
established when authorities in power formalise it, and judges and magistrates
regularise it by setting the power of precedent. In the course of time, people become
attached to the laws, and even more attached to particular authorities, both of which
come to acquire lives of their own. A sense of allegiance is born.
Of crucial importance in Hume’s social theory is his understanding of human
institutions as capable of having lives of their own. They come into the world without
human design, and they develop not at the whim of any individual or by the wish of
any collective. Law, once in place, is a ‘hardy plant’ that will survive even if abused or
neglected. Government, once in place, will evolve as it responds to the interests that
shape and try to control it. The entire edifice of society will reflect not any collective
purpose or intention but the interplay of interests that contend for pre-eminence. The
state, in this analysis, is not the construction of human reason rooted in individual
consent to a political settlement; nor a product of the decrees of divine providence,
even if the construction appears ever so perfect. It is simply the residue of what might
(anachronistically) be called a Darwinian struggle. What survives is what is most fit to
do so.
The state in this story is the product of chance: it is nothing more than the way
political interests have settled for now the question of how power should be allocated
and exercised. It would be a mistake to think that they could do this simply as they
pleased, as if on a whim. The facts of human psychology and the logic of strategic
relations will constrain action, just as will the prevailing balance of power. But chance
events can bring about dramatic and unexpected changes.
The important thing, however, is that for Hume the state cannot be accounted for
by referring to any deeper moral interest that humans have – be that in justice, or
freedom, or reconciliation with their fellows. The state, like all institutions, is an
evolutionary product. Evolution has no purpose, no end, and no prospect of being
controlled.
Hume’s theory of the state is, in the end, born of a deeply pluralistic outlook.
Hume was very much alive to the fact of human diversity – of customs, laws, and
political systems. He was also very much aware of the extent to which human society
was marked by conflicts among contending interests. The human condition was always
366 University of Queensland Law Journal 2014

going to be one of interest conflict, and this condition was capable of palliation but
resistant to cure. All human institutions had to be understood as the outcome of
conflict and efforts at palliation, but not as resolutions of anything. If there are two
general tendencies we might observe, Hume suggests, they are the tendency to
authority and the tendency to liberty. Both elements are there at the heart of the human
predicament: authority is needed to make society possible, and liberty to make it
perfect. But there is no particular balance to be struck, for every point on the scale is a
possible equilibrium point, each with its own advantages and disadvantages. To
understand the state is to recognise that we are in this predicament and that there is no
final resolution.
Hume’s theory of the state, as I have presented, in some ways recalls the theory
offered by Michael Oakeshott, which presents the modern European state as shifting
uneasily between two competing tendencies. One tendency is towards what he called
society as an enterprise association: a conception of the role of the state as having a
purposive character, its purpose being to achieve some particular goal or goals – such
as producing more economic growth and raising levels of happiness. The other
tendency is towards the idea of society as a civil association: a conception of the state
as having no particular purpose beyond making possible its members’ pursuit of their
own separate ends. The state’s historical character is of an institution that has oscillated
between these two tendencies, never at any time being of either one kind or the other.
Hume’s theory of the state shares with Oakeshott’s account this unwillingness to set
down in definitive or snapshot form a picture or description of something that
embodies important contradictions. Even if it seems not particularly satisfying, I
suspect it is about as satisfying a portrait of the state as we can hope to get.