In this article the principles of the origin of state. It has been told about the origin of state, how the state originated and its development and which theories of the origin of state have been explained by the scholars. This article is for LL.B, LL.M. It is very important for students
Origin of State
The origin of state has always been a matter of curiosity for scholars. But there is no authentic evidence or historical evidence available regarding the origin of state which would give us the knowledge as to when and how the state came into existence.
In the absence of historical facts, thinkers have presented many arguments regarding the origin of state on the basis of imagination, on the basis of which the theory of origin of state has been divided into many parts –
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Theories of Origin of State
(i) Theory of Divine Origin
(ii) The Force Theory
(iii) Social Contract Theory
(iv) Hereditary Theory
(v) Evolutionary Theory
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(i) Theory of Divine Origin
This theory of the origin of state is very old. In the absence of any definite evidence or historical material regarding the origin of state, scholars accepted that the state is a gift of God and in many religious texts and scholars like Jelinek, Stuart James, Robert Filmer etc. have been supporters of this theory.
According to James I, rulers are the breathing images of God on earth. Followers of Christianity, Egypt and China also accepted the divine power of the king.
The main belief of this theory was that violating the orders of the state or the ruler was tantamount to a sin against God and the followers of this theory said that even if the king is evil and fallen, then it should be understood that God has given him the power to protect his subjects.
He was sent to atone for the sins and rebelling against him was also considered equivalent to rebelling against God.
But with the development of political consciousness and rationalism in the seventeenth century, people started losing faith in religious blind faith and politics was separated from religion and the secular form of the state started being given priority.
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(ii) Principle of Force
According to the theory of force, it was believed that states developed on the basis of power. Powerful groups subjugated the weaker groups by force. Thus, as a result of mutual conflict between clans, small communities came into existence and gradually they transformed into tribes.
The gradual development, conflict and fusion of these tribes led to the formation of large communities and thus the state was born. Famous German scholar Oppenheim, English sociologist Jenks and American scholars Smoll and Ward are the main supporters of this theory. Herbert Spencer and Marx have also accepted this principle.
Similarly, many scholars have criticized the theory of force and said that people can be forced to obey by the use of force, but it cannot generate respect, trust and loyalty towards the state. The state cannot be made stronger and stronger on the basis of force alone.
In fact, to make the state strong and strong, it is necessary for the common people to have faith and loyalty towards the state and this can be possible only when the state tries to fulfill the needs and aspirations of the people keeping in mind the public interest.
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(iii) Social Contract Theory
The theory of social contract is a theory completely based on imagination. Its main belief is that the state originated due to mutual agreement between humans and Hobbes, Locke and Rousseau are considered the main promoters of this theory.
According to him, there was a time when man lived without a state. He called this state of society ‘state of nature’.
According to the social contract theory, there was neither any state nor any government in the natural state of human life. But due to some difficulties, when humans entered social life, they made a contract among themselves that they would all live a peaceful life among themselves, on which people established a state on the basis of mutual agreement, whose head was made a king, thus The ‘State’ was born on the basis of contract.
Rousseau (1712-1788) described the natural state as more pleasant. He based his social contract on the general will of the people and said that the real power of the state lies in the general will of the people only.
The theory of social contract has been criticized by many scholars. He believed that this theory is based on pure imagination and has no real historical basis.
Famous jurist Austin has also criticized the social contract and said that any contract is possible only when a definite law already exists for it. According to Garner, this type of contract has no logical or philosophical basis.
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(iv) Genetic Theory
Many scholars have described the state as natural and necessary for the human community. According to the famous jurist Plato, the common reason for the origin of state is that man is not complete in himself. To fulfill the needs of life he has to cooperate with other people and thus gradually the state develops.
According to Aristotle, genetic principle is a natural culmination of human social organizations.
To fulfill the needs of life, first of all the family is born, but when the family does not prove to be sufficient, then gradually larger societies are created by humans, in which first ‘villages’ and then ‘village groups’ are formed and further. Later on, the state comes into existence due to the union of these ‘village groups’.
This ideology regarding the origin of state has been called the ‘theory of heredity’. According to it, the first community of human beings was the family and gradually with the development of the family, clans, clans, tribes etc. were formed and after this the city and state came into existence.
There are two forms of genetic theory –
(i) Patriarchal Theory –
The name of Sir Henry Main is prominent among the supporters of patriarchal theory. After studying ancient societies, he came to the conclusion that the state was formed through the development of the family.
According to his opinion, genealogy of ancient families was done in the name of men and the oldest man of the family had unlimited rights, as a result of which he could even give death sentence to the family members.
Gradually the families started growing naturally or by conquering other communities and gradually many families were formed from one family and all of them together transformed into a clan.The head of the family was also usually the oldest man.
In this way, tribes were formed by merging many tribes and at some places, unions of these tribes were formed and the unions gradually took the form of states.
(ii) Matriarchal Theory —
McLennan, Morgan and Jenks etc. are considered to be the main supporters of this theory. These scholars are of the opinion that the primary family form was not patriarchal but matriarchal. According to them, until families consisting of husband and wife were born, patriarchal families were not formed.
In early societies, humans were sexually free. In such a situation, only the mother’s relationship could be known with certainty, that is why genealogy was based on the mother’s name and not on the father’s name. The head of these families was not a man but an elderly woman. For this reason families have been called matriarchal.
After studying the life of the primitive inhabitants of Australia, Jacques refuted Henry Maine’s belief that the development of society begins with the patriarchal family, whose expansion later leads to the formation of tribes and states. According to Jacques, the primary group of people was not a family but a ‘totem’ or clan.
Later these tribes got divided and started living in clans and marriages started within these clans. Patriarchal families came into existence only after this.
In this way, according to Jenks, for the first time, the era of joint marriages came in which genealogy was done in the mother’s name and power also rested in the mother’s name.
(v) Evolutionary Theory
According to the evolutionary theory, the state neither came into existence due to divine power nor was it created intentionally by man.
According to this theory, the origin of state is based on the sequence of its natural development. That is why it is also called Historical Theory.
The summary of this theory related to the development of the state is that as the society developed, the interests of the people kept increasing. As a result: different classes of people got different rights. In this sequence, political organizations were later formed which were called ‘States’.
In this way, the state has developed gradually and naturally and its beginning is hidden in the layers of past history. Historically, conflicts and wars have contributed greatly to the origin of state because they give rise to unity and common feeling.
Thus, the main theories of the origin of the above mentioned state are
State :- Why is it different from society, government and nation?
Since the state has the recognition of legal personality, it should be considered different from the society, government and nation, and these differences are as follows –
State and society –
Society is more expansive than the state. According to Mac Iver, society is the study of changing forms of social relations.
Society includes all human communities – whether they are well organized or not. But only politically organized communities come under the state, not other types of communities. In human history, the state was established much later than the society.
Society is very essential for human life because man depends on society for his protection, upbringing, education, happiness etc.
But the work of the state is to protect and promote the interests of the people by maintaining peace and order in the society and for this the state forces people to obey through its laws.
State and Government –
In the present times the distinction between state and government has almost been forgotten. As has been said that ‘Government’ is an essential element of the state through which the state tries to fulfill its objectives. The will of the state is created, expressed and fulfilled through ‘government’.
According to Professor Cole, the state is nothing but the political machinery for the governance of the masses, but considering the state and government as the same can create confusion.
The difference between state and government can be understood by an example that governments are unstable, they keep coming and going or changing but states are relatively permanent.
From this it is clear that ‘sovereignty’ is not a characteristic of the government but a characteristic of the state. The government acts as an agent of the state, if as an agent of the state it is found incapable of fulfilling its responsibilities, it can be replaced through the prescribed procedure.
State and Nation –
A society of people living under the same government is called a state. For this, it is not necessary that these people follow the same caste or the same religion, their castes and religions can be different.
For example, in the United States of America, even though people of different races like African, Irish, Italian, Teutonic etc. live there, it is still called a ‘state’.
According to Oppenheim, national consciousness gives birth to the nation. Apart from unity of caste and language, religious and geographical unity is also very important for the development of the nation. No community can become a nation unless it is bound by common customs.
Professor Sidgwick says that it is enough for a nation that there should be a common feeling of mutual relationship among the people and they all consider themselves bound by one thread.
There is also a difference between the state and the nation that the state is an artificial bond which keeps its citizens united among themselves through political consciousness. But nation is a natural bond which binds its members together on the basis of lineage, language and tradition.
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Reference – Jurisprudence & Legal Theory (14th Version, 2005)
