306 



From llie neglect to observe this obvious truth, many errors have re- 

 sulted, ana indeed it would be almost impossible to instance all the false 

 and pernicious conclusions which have been drawn from this analogy — 

 as, for instance, that of Kant, Rousseau, and numerous others, to which 

 we have alluded, that the State has a will which must be regarded as the 

 united will of the individual members of the community ; which involves 

 a double fiction, namely, the obviously false proposition that the wills of 

 all the citizens may be, in fact, united, or, rather, chemically compounded, 

 and the further proposition, that they are vested in a personage as purely 

 fictitious as the genii of the Arabinn Nights. And a still more remarkable 

 instance is the organic or 2'>^y<i^<'Ological theory of Bluntschli — already re- 

 viewed in the preceding pages of this work — which, in effect, regards the 

 State as an actual organism, or organic being, having will, intelligence 

 and parts like the actual man ; and in which numerous functions are 

 assigned to the State ; many of which are illegitimate and some im- 

 possible. 



On this account, in adopting the use of the term, "the organic 

 theory,"* I spoke of it as not altogether appropriate. For, while the 

 terms "organize" and "organization" are commonly applied to bodies 

 of men, as when we speak of organizing a meeting, or a government, the 

 term "organic" has acquired a narrower meaning as denoting merely 

 an organic being, either animal or vegetable — a sense which it is necessary 

 altogether to repudiate in speaking of the State. It will, therefore, be 

 understood throughout this work that in applying the term, organic, to 

 the State, we use it not as denoting an animal, or vital connection 

 between its different parts, or as implying that the State is in any sense a 

 living man, with intelligence, or will, but simply as denoting a permanent 

 composite naturally existing whole, which, in many respects, bears a close 

 analogy to an organic being in the narrower and stricter sense. 



§53. Of the Distinction Beticeen the Internal and External Rights of 

 the State ; and Herein of Inttrnational Right. 



In considering the rights of the State it is to be first observed that the 

 State occupies two distinct relations, viz., the one, towards its subjects, 

 the other, towards other States. Accordingly, the rights of the State are 

 to be divided into two classes, namely, its internal and its external rights. 

 The former belong peculiarly to the subject of the present work ; the 

 latter, to an independent, though closely related science, known as the 

 Law, or, more properly, the Right of Nations (jus gentium), or, as in 

 modern times, it is more commonly called, International Right, or Law. 



It is one of Austin's tenets, generally received by the later English 

 jurists, that international law, or right, is not law in the true sense, and 

 this conclusion — as we have observed — necessarily follows from his defi- 

 nition of the law, as being merely the expressed will of the State; on 

 which, as we have seen, his theory wholly rests. And hence, according 



* Supra, p. 240. 



