This article will help you to differentiate between national society and national state.
(a) Under modern conditions, and as a result of the historic process by which they have been created, the basic form of human community, which we may call the community par excellence, is the nation—an inclusive all-purposes body of persons, covering a territorial area or patria, and containing within itself a variety of particular-purpose societies.
More fully defined, the nation may be said to be a body of persons, inhabiting a definite territory and thus united by the primary fact of contiguity, who physiologically, and in respect of the blood in their veins, are generally drawn from a number of different races or breeds brought by time and their own wanderings into the territory, but who psychologically, and in respect of the content of their minds, have been led by a life of contiguity to develop two forms of mental sympathy.
The first is a common capital of thoughts and feelings acquired and transmitted in the course of a common past history: a common capital, or tradition, which includes as a rule a common language, a common religion (which may, however, assume a number of different forms), and a common culture variously expressed in art and architecture, in literature, in social habits, and otherwise.
The second is a common will to live together for the future, freely and independently increasing the common capital of thoughts and feelings, and thus exercising a right at the very least of social, but possibly also of political self-determination.
A reflection may be added to this definition of the nature of a nation. When nations became self-conscious, as they did in the nineteenth century and have progressively done in the twentieth, they seek to express and interpret—but they may only succeed in distorting—what may be called the ‘idea of the Nation’.
The term ‘nation’ may thus acquire different senses among different nations, and even at different periods of the history of the same nation. In Germany under the National Socialists the nation became, in an interpretation which was also a distortion of its nature, a racial structure built on the basis of an assumed consanguinity or common Aryan blood which was supposed to carry in its corpuscles a psychological treasure (as if time and tradition were not the main makers of such treasure), and which was to be kept pure from any admixture in order that the treasure might also be pure.
In Italy, again, the nation became, in another interpretation which was also a visionary distortion, a metaphysical super-person: not a body of persons united by the psychological bonds of a common tradition and purpose, but a person above that body of persons, ‘with a being, ends, and means of action’ (so it was expressed in a document curiously entitled the Charter of Labour) ‘superior to those of the individuals, separate or grouped, of whom it is composed’.
It is a relief to turn from such interpretations to the simplicity of France, even if France may be said to have exaggerated the moi and the sovereignty of the nation. The French conception, based, in its present form, on the Revolution of 1789, is neither racial nor metaphysical.
The sovereign nation is simply the population of the territory of France, one and indivisible in the strength of the natural frontiers by which it is enclosed, and united together internally by the bond of a common amour du pays natal.
In a word, the nation is something rooted in the soil of France—in its sun, its wine, its speech, its social habits, its general culture and way of life. . . . But however the nation may be conceived, and however its unity may be interpreted, the fact of the unity of the national community is the primary fact—except in the philosophy of Communist Russia, which is, or was (for even here the nation will recur), based on the cohesion of an international proletariate rather than on the unity of national community.
(b) The territorial nation provides the space-area and the human material over and upon which the form of the State is generally stamped; and when that form is so stamped, the national community—or, as it may also be called, the society of the nation—while still remaining a national society, and continuing to act as such, becomes also a national State, and acts henceforth as a State by legal methods for legal purposes. The reason why the nation is generally the basis of a State is simple.
There must be a general social cohesion which serves as it were, as a matrix, before the seal of legal association can be effectively imposed on a population. If the seal of the State is stamped on a population which is not held together in the matrix of a common tradition and sentiment, there is likely to be a cracking and splitting, as there was in Austria-Hungary.
This is not to say that a single cohesive national society is always, even today, the ‘matter’ on which the ‘form’ of the State is impressed: on the contrary, as we shall have reason to notice, there are still heterogeneous States. It is only to say that such a society is the basis of harmonious and viable States.
(c) The stamping of the form of the State on a territorial nation has a triple significance. It means that the natural national society, which is simply there, becomes also a covenanted legal association, which is put there.
It means, again, that the society achieves this transformation by creating and adopting a legal memorandum of association—or in other words a ‘constitution’—which henceforth serves as its primary law; which always contains a scheme (though that scheme is not necessarily written) of the organs and the methods by which the association is to act, or in other words a ‘frame of government’; and which may also contain a scheme of the purposes for which it is to act, or in other words a ‘declaration of rights’.
Finally, it means that the association will henceforth act through these organs, by these methods, and for these purposes, in the way of declaring and enforcing a body of rules of secondary or ordinary law which regulate the external actions of all its members. We may accordingly define a State as ‘a juridical organized nation, or a nation organized for action under legal rules’.
In greater detail, and in order to elucidate the ideas implied in that definition, we may say that ‘a modern State is generally a territorial nation organized as a legal association by its own action in creating a primary body of constitutional law (such action often being a process along a line of time rather than an act at a point of time), and functioning in that capacity under that primary body of law for the purpose of declaring and enforcing a secondary body of ordinary law’.
The fuller definition which has just been given itself requires some measure of addition or amplification. In the first place, it must be repeated that the nation continues to be a nation, and to act as a nation in other than legal ways, even after it has adopted the form of a State for action in legal ways. ‘Just because the State is so intimately bound up with law, it is unable to satisfy the pressure of the varied currents of economic, religious, cultural aspirations by its exclusive action.’
Accordingly, as a whole and as one, the national society still remains active in the formation and expression of public opinion, social manners, and national character; while as a society of societies, and therefore diverse and manifold, it also continues to act in a variety of channels, and for a variety of purposes, in order to satisfy and express the set of the various currents and the trend of the different aspirations.
There is a second addition, more serious in its nature, which must also be made. The modern State is not always a unitary national Society. It may contain national minorities, of a different temper and separate tradition from that of the majority nation.
In that case it is possible that a national minority may be content to exist simply as a social group, cherishing its own social manners and customs, its own particular language or dialect, and its own particular form of religious worship.
Scotland may be said to be such a group, with its social form of national unity particularly and peculiarly expressed in the Presbyterian Church of Scotland (claiming in any case, as of right, its own inherent independence, but formally recognized by the State in its independence ‘as a national church representative of the Christian faith of the Scottish people’) and also with the added legal right of separate Scottish courts and some measure, though a diminishing measure, of separate Scottish rules of law. But it is seldom easy for a national minority to be content to exist simply as a social group.
On the one hand the State, mainly based on the national majority, may seek to insist that the right of a national minority to use its own language does not extend into the area of State institutions, such as the schools and courts of the State; and it may thus raise legal issues which carry the national minority out of the social sphere into that of the legal association and its compulsory rules.
On the other hand a national minority may itself raise legal issues, and challenge the legal rights of the State: it may, for example, claim a separate legal position (some form of autonomy or ‘home rule’) within the legal association; or it may even claim that it ought to be a separate and independent legal association and is therefore entitled to secede and assume the position of a sovereign State.
To distinguish between the ‘social’ and the ‘legal’ sphere is no solution to the problem of national minorities, unless they on their side are willing to recognize and observe the distinction, and unless the majority nation on which the State is predominantly based is equally willing to recognize and observe the same distinction.
A third and last addition to the argument is necessary in order to explain the place of the constitution in the structure of the modern State. By the terms of the definition suggested, a modern State is a territorial nation organized as a legal association by its own action in creating a constitution.
On this showing the constitution is a bridge, made by a nation, which spans the interval and maintains the connection between the nation and the State. Such a view may readily be challenged. Do all nations, as a matter of fact, create a constitution by their own act, in order thereby to constitute themselves States? It may be argued that constitutions generally are not made, but grow: nascuntur, non fiunt.
Hegel may be cited in evidence: ‘What is called making a constitution is a thing that has never happened in history: a constitution only develops from the national spirit identically with that spirit’s own development.’
Short of that, it may well be argued that there are at any rate some constitutions, such as the English, which have not been made, but have grown historically; and it may thus be contended that the English nation has never created a constitution —but is nevertheless a State.
Two answers may be made to this contention. The first is that almost every modern State (alike in Europe, in America, and in Asia) has come into existence in its present form, and as what it now is, through the creation of a constitution which is the constituent charter of its being.
Either there has been a break in the national life, a revolution, followed by a national act reorganizing the nation as a new legal association under a new constitution (this happened in France in 1789, and has happened again and again in different countries since); or there has been some act of separation from a larger whole and some consequent reconstruction of the separated unit or units (as the North American colonies separated from Great Britain in 1776 and then proceeded to reconstruct their life under new constitutions of their own making); or, conversely, there has been some union of parts hitherto separate in a new federal body, and this union has been accompanied, and indeed made, by the creation of a federal constitution, such as the American constitution of 1787, or the Canadian of 1867, or the Australian of 1900.
In one or another of these ways, or in some way similar to these, almost every State of the modern world has been organized in its present form, and as what it now actually is, by an act creating a constitution; and this act has generally been the overt act of a nation, expressing itself in and through an assembly of national representatives, though sometimes the form of the act may have been that of a royal grant (or octroi) in deference to the national will, or again of a parliamentary grant made to a dominion or colony in pursuance of its desires.
These are the facts of the modern world; and when we are constructing a theory of the nature of the modern State, we have to adjust our theory to those facts. But there is also a second answer to the argument that constitutions are historical growths, and not acts of creation.
Even when a constitution has not been created at a point of time, but has been developed through the centuries along a line of time: even where a nation, during those centuries, may seem, at any rate in form, to have had little or nothing to do with constitution-making: even then, and even there, the formation of the constitution has been at each step an act of will and creation, and the whole of the constitution, as it now stands, is a nationally endorsed scheme of rules (not necessarily written, but none the less effective) which makes the State what it is today, controlling its operation and constituting its character.
From this point of view the distinction between written and unwritten constitutions—or, more exactly, the distinction between constitutions created uno ictu and constitutions developed by a long and continuous process (both containing unwritten as well as written elements, though the proportion of the written to the unwritten may be larger in the former than it is in the latter)—is more a distinction of form than a distinction of substance. Both are alike memoranda of the association of the State; and both constitute it equally as the legal association which it is.