This pamphlet is not intended for lawyers. I can therefore touch only in passing, as on so many other things, 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 of no practical 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.
The people is the subjective, land the objective foundation of a state, and the subjective basis is the more important of the two. One sovereignty, for example, which has no objective basis at all, is perhaps the most respected one in the world. I refer to the sovereignty of the Pope. The theory of rationality is the one at present accepted in political science. This theory suffices to justify the creation of a State, and cannot be historically refuted in the same way as the theory of a contract. Insofar as I am concerned only with the creation of a Jewish State, I am well within the limits of the theory of rationality. But when I touch upon the legal basis of the State, I have exceeded them. The theories of a divine institution, or of superior power, or of a contract, and the patriarchal and patrimonial theories do not accord with modern views. The legal basis of a State is sought either too much within men (patriarchal theory, and theories of superior force and contract), or too far above them (divine institution), or too far below them (objective patrimonial theory). The theory of rationality leaves this question conveniently and carefully unanswered. But a question which has seriously occupied doctors of jurisprudence in every age cannot be an absolutely idle one. As a matter of fact, a mixture of human and superhuman goes to the making of a State. Some legal basis is indispensable to explain the somewhat oppressive relationship in which subjects occasionally stand to rulers. I believe it is to be found in the negotiorum gestio, wherein the body of citizens represents the dominus negotiorum, and the government represents the gestor.
The Romans, with their marvelous sense of justice, produced that noble masterpiece, the negotiorum gestio. When the property of an oppressed person is in danger, any man may step forward to save it. This man is the gestor, the director of affairs not strictly his own. He has received no warrant -- that is, no human warrant; higher obligations authorize him to act. The higher obligations may be formulated in different ways for the State, and so as to respond to individual degrees of culture attained by a growing general power of comprehension. The gestio is intended to work for the good of the dominus - the people, to whom the gestor . himself belongs.
The gestor administers property of which he is joint-owner. His joint proprietorship teaches him what urgency would warrant his intervention, and would demand his leadership in peace or war; but under no circumstances is his authority valid qua joint proprietorship. The consent of the numerous joint-owners is even under most favorable conditions a matter of conjecture.
A State is created by a nation's struggle for existence. In any such struggle it is impossible to obtain proper authority in circumstantial fashion beforehand. In fact, any previous attempt to obtain a regular decision from the majority would probably ruin the undertaking from the outset. For internal schisms would make the people defenseless against external dangers. We cannot all be of one mind; the gestor will therefore simply take the leadership into his hands and march in the van.
The action of the gestor of the State is sufficiently warranted if the common cause is in danger, and the dominus. is prevented, either by want of will or by some other reason, from helping itself.
But the gestor becomes similar to the dominus by his intervention, and is bound by the agreement quasi ex contractu. This is the legal relationship existing before, or, more correctly, created simultaneously with the State.
The gestor thus becomes answerable for every form of negligence, even for the failure of business undertakings, and the neglect of such affairs as are intimately connected with them, etc. I shall not further enlarge on the negotiorum gestio, but rather leave it to the State, else it would take us too far from the main subject. One remark only: "Business management, if it is approved by the owner, is just as effectual as if it had originally been carried on by his authority."
And how does all this affect our case?
The Jewish people are at present prevented by the Diaspora from conducting their political affairs themselves. Besides, they are in a condition of more or less severe distress in many parts of the world. They need, above all things a gestor. This gestor cannot, of course, be a single individual. Such a one would either make himself ridiculous, or - seeing that he would appear to be working for his own interests - contemptible.
The gestor of the Jews must therefore be a body corporate.
And that is the Society of Jews.
THE GESTOR OF THE JEWS
This organ of the national movement, the nature and functions of which we are at last dealing with, will, in fact, be created before everything else. Its formation is perfectly simple. It will take shape among those energetic Jews to whom I imparted my scheme in London [Dr. Herzl addressed a meeting of the Maccabean Club, at which Israel Zangwill presided, on November 24th, 1895].
The Society will have scientific and political tasks, for the founding of a Jewish State, as I conceive it, presupposes the application of scientific methods. We cannot journey out of Egypt today in the primitive fashion of ancient times. We shall previously obtain an accurate account of our number and strength. The undertaking of that great and ancient gestor of the Jews in primitive days bears much the same relation to ours that some wonderful melody bears to a modern opera. We are playing the same melody with many more violins, flutes, harps, violoncellos, and bass viols; with electric light, decorations, choirs, beautiful costumes, and with the finest singers of their day.
This pamphlet is intended to open a general discussion on the Jewish Question. Friends and foes will take part in it; but it will no longer, I hope, take the form of violent abuse or of sentimental vindication, but of a debate, practical, large, earnest, and political.
The Society of Jews will gather all available declarations of statesmen, parliaments, Jewish communities, societies, whether expressed in speeches or writings, in meetings, newspapers or books.
Thus the Society will find out for the first time whether the Jews really wish to go to the Promised Land, and whether they must go there. Every Jewish community in the world will send contributions to the Society towards a comprehensive collection of Jewish statistics.
Further tasks, such as investigation by experts of the new country and its natural resources, the uniform planning of migration and settlement, preliminary work for legislation and administration, etc., must be rationally evolved out of the original scheme.
Externally, the Society will attempt, as I explained before in the general part, to be acknowledged as a State-forming power. The free assent of many Jews will confer on it the requisite authority in its relations with Governments.
Internally, that is to say, in its relation with the Jewish people, the Society will create all the first indispensable institutions; it will be the nucleus out of which the public institutions of the Jewish State will later on be developed.
Our first object is, as I said before, supremacy, assured to us by international law, over a portion of the globe sufficiently large to satisfy our just requirements.
What is the next step?
THE OCCUPATION OF THE LAND
When nations wandered in historic times, they let chance carry them, draw them, fling them hither and thither, and like swarms of locusts they settled down indifferently anywhere. For in historic times the earth was not known to man. But this modern Jewish migration must proceed in accordance with scientific principles.
Not more than forty years ago gold-digging was carried on in an extraordinarily primitive fashion. What adventurous days were those in California! A report brought desperados together from every quarter of the earth; they stole pieces of land, robbed each other of gold, and finally gambled it away, as robbers do.
But today! What is gold-digging like in the Transvaal today? Adventurous vagabonds are not there; sedate geologists and engineers alone are on the spot to regulate its gold industry, and to employ ingenious machinery in separating the ore from surrounding rock. Little is left to chance now.
Thus we must investigate and take possession of the new Jewish country by means of every modern expedient.
As soon as we have secured the land, we shall send over a ship, having on board the representatives of the Society, of the Company, and of the local groups, who will enter into possession at once.
These men will have three tasks to perform: (1) An accurate, scientific investigation of all natural resources of the country; (2) the organization of a strictly centralized administration; (3) the distribution of land. These tasks intersect one another, and will all be carried out in conformity with the now familiar object in view.
One thing remains to be explained -- namely, how the occupation of land according to local groups is to take place.
In America the occupation of newly opened territory is set about in naive fashion. The settlers assemble on the frontier, and at the appointed time make a simultaneous and violent rush for their portions.
We shall not proceed thus to the new land of the Jews. The lots in provinces and towns will be sold by auction, and paid for, not in money but in work. The general plan will have settled on streets, bridges, waterworks, etc., necessary for traffic. These will be united into provinces. Within these provinces sites for towns will be similarly sold by auction. The local groups will pledge themselves to carry the business property through, and will cover the cost by means of self-imposed assessments. The Society will be in a position to judge whether the local groups are not venturing on sacrifices too great for their means. The large communities will receive large sites for their activity. Great sacrifices will thus be rewarded by the establishment of universities, technical schools, academies, research institutes, etc., and these Government institutes, which do not have to be concentrated in the capital, will be distributed over the country.
The personal interest of the buyers, and, if necessary, the local assessment, will guarantee the proper working of what has been taken over. In the same way, as we cannot, and indeed do not wish to obliterate distinctions between single individuals, so the differences between local groups will also continue. Everything will shape itself quite naturally. All acquired rights will be protected, and every new development will be given sufficient scope.
Our people will be made thoroughly acquainted with all these matters.
We shall not take others unawares or mislead them, any more than we shall deceive ourselves.
Everything must be systematically settled beforehand. I merely indicate this scheme: our keenest thinkers will combine in elaborating it. Every social and technical achievement of our age and of the more advanced age which will be reached before the slow execution of my plan is accomplished must be employed for this object. Every valuable invention which exists now, or lies in the future, must be used. By these means a country can be occupied and a State founded in a manner as yet unknown to history, and with possibilities of success such as never occurred before.
One of the great commissions which the society will have to appoint will be the council of state jurists. These must formulate the best, that is, the best modern constitution possible. I believe that a good constitution should be of moderately elastic nature. In another work I have explained in detail what forms of government I hold to be the best. I think a democratic monarchy and an aristocratic republic are the finest forms of a state, because in them the form of state and the principle of government are opposed to each other, and thus preserve a true balance of power. I am a staunch supporter of monarchial institutions, because these allow of a continuous policy, and represent the interests of a historically famous family born and educated to rule, whose desires are bound up with the preservation of the State. But our history has been too long interrupted for us to attempt direct continuity of ancient constitutional forms, without exposing ourselves to the charge of absurdity.
A democracy without a sovereign's useful counterpoise is extreme in appreciation and condemnation, tends to idle discussion in parliaments, and produces that objectionable class of men -- professional politicians. Nations are also really not fit for unlimited democracy at present, and will become less and less fitted for it in the future. For a pure democracy presupposes a predominance of simple customs, and our customs become daily more complex with the growth of commerce and increase of culture. "Le ressort d'une democracie est la vertu," said wise Montesquieu. And where is this virtue, that is to say, this political virtue, to be found? I do not believe in our political virtue; first, because we are no better than the rest of modern humanity; and, secondly, because freedom will make us show our fighting qualities at first. I also hold a settling of questions by the referendum to be an unsatisfactory procedure, because there are no simple political questions which can be answered merely by Yes and No. The masses are also more prone even than parliaments to be led away by heterodox opinions, and to be swayed by vigorous ranting. It is impossible to formulate a wise internal or external policy in a popular assembly.
Politics must take shape in the upper strata and work downwards. But no member of the Jewish State will be oppressed, every man will be able and will wish to rise in it. Thus a great upward tendency will pass through our people; every individual by trying to raise himself, raising also the whole body of citizens. The ascent will take a normal form, useful to the State and serviceable to the national Idea.
Hence I incline to an aristocratic republic. This would satisfy the ambitious spirit in our people, which has now degenerated into petty vanity. Many of the institutions of Venice pass through my mind; but all that which caused the ruin of Venice must be carefully avoided. We shall learn from the historic mistakes of others, in the same way as we learn from our own; for we are a modern nation, and wish to be the most modern in the world. Our people, who are receiving the new country from the Society, will also thankfully accept the new constitution it offers them. Should any opposition manifest itself, the Society will suppress it. The Society cannot permit the exercise of its functions to be interpreted by short-sighted or ill-disposed individuals.
It might be suggested that our want of a common current language would present difficulties. We cannot converse with one another in Hebrew. Who amongst us has a sufficient acquaintance with Hebrew to ask for a railway ticket in that language! Such a thing cannot be done. Yet the difficulty is very easily circumvented. Every man can preserve the language in which they formulate their thoughts. Switzerland affords conclusive proof of the possibility of a federation of tongues. We shall remain in the new country what we now are here, and we shall never cease to cherish with sadness the memory of the native land out of which we have been driven.
We shall give up using those miserable stunted jargons, those Ghetto languages which we still employ, for these were the stealthy tongues of prisoners. Our national teachers will give due attention to this matter; and the language which proves itself to be of greatest utility for general intercourse will be adopted without compulsion as our national tongue. Our community of race is peculiar and unique, for we are bound together only by the faith of our fathers.
Shall we end by having a theocracy? No, indeed. Faith unites us, knowledge gives us freedom. We shall therefore prevent any theocratic tendencies from coming to the fore on the part of our priesthood. We shall keep our priests within the confines of their temples in the same way as we shall keep our professional army within the confines of their barracks. Army and priesthood shall receive honors high as their valuable functions deserve. But they must not interfere in the administration of the State which confers distinction upon them, else they will conjure up difficulties without and within.
Every man will be as free and undisturbed in his faith or his disbelief as he is in his nationality. And if it should occur that men of other creeds and different nationalities come to live amongst us, we should accord them honorable protection and equality before the law. We have learnt toleration in Europe. This is not sarcastically said; for the anti-Semitism of today could only in a very few places be taken for old religious intolerance. It is for the most part a movement among civilized nations by which they try to chase away the specters of their own past.
When the idea of a state begins to approach realization, the Society of Jews will appoint a council of jurists to do the preparatory work of legislation. During the transition period these must act on the principle that every emigrant Jew is to be judged according to the laws of the country which he has left. But they must try to bring about a unification of these various laws to form a modern system of legislation based on the best portions of previous systems. This might become a typical codification, embodying all the just social claims of the present day.
The Jewish State is conceived as a neutral one. It will therefore require only a professional army, equipped, of course, with every requisite of modern warfare, to preserve order internally and externally.
We have no flag, and we need one. If we desire to lead many men, we must raise a symbol above their heads.
I would suggest a white flag, with seven golden stars. The white field symbolizes our pure new life; the stars are the seven golden hours of our working-day. For we shall march into the Promised Land carrying the badge of honor.
RECIPROCITY AND EXTRADITION TREATIES
The new Jewish State must be properly founded, with due regard to our future honorable position in the world. Therefore every obligation in the old country must be scrupulously fulfilled before leaving. The Society of Jews and the Jewish Company will grant cheap passage and certain advantages in settlement to those only who can present an official testimonial from the local authorities, certifying that they have left their affairs in good order.
Every just private claim originating in the abandoned countries will be heard more readily in the Jewish State than anywhere else. We shall not wait for reciprocity; we shall act purely for the sake of our own honor. We shall thus perhaps find, later on, that law courts will be more willing to hear our claims than now seems to be the case in some places.
It will be inferred, as a matter of course, from previous remarks, that we shall deliver up Jewish criminals more readily than any other State would do, until the time comes when we can enforce our penal code on the same principle as every other civilized nation does. There will therefore be a period of transition, during which we shall receive our criminals only after they have suffered due penalties. But, having made amends, they will be received without any restrictions whatever, for our criminals also must enter upon a new life.
Thus emigration may become to many Jews a crisis with a happy outcome. Bad external circumstances, which ruin many a character, will be removed, and this change may mean salvation to many who are lost.
Here I should like briefly to relate a story I came across in an account of the gold mines of Witwatersrand. One day a man came to the Rand, settled there, tried his hand at various things, with the exception of gold mining, until he founded an ice factory, which did well. He soon won universal esteem by his respectability, but after some years he was suddenly arrested. He had committed some misappropriations as a banker in Frankfort, had fled from there, and had begun a new life under an assumed name. But when he was led away as prisoner, the most respected people in the place appeared at the station, bade him a cordial farewell and au revoir -- for he was certain to return.
How much this story reveals! A new life can regenerate even criminals, and we have a proportionately small number of these. Some interesting statistics on this point are worth reading, entitled "The Criminality of Jews in Germany," by Dr. P. Nathan of Berlin, who was commissioned by the "Society for Defense against anti-Semitism" to make a collection of statistics based on official returns. It is true that this pamphlet, which teems with figures, has been prompted, as many another "defense," by the error that anti-Semitism can be refuted by reasonable arguments. We are probably disliked as much for our gifts as we are for our faults.
BENEFITS OF THE EMIGRATION OF THE JEWS
I imagine that governments will, either voluntarily or under pressure from the anti-Semites, pay certain attention to this scheme, and they may perhaps actually receive it here and there with a sympathy which they will also show to the Society of Jews.
For the emigration which I suggest will not create any economic crises. Such crises as would follow everywhere in consequence of Jew-baiting would rather be prevented by the carrying out of my plan. A great period of prosperity would commence in countries which are now anti-Semitic. For there will be, as I have repeatedly said, an internal migration of Christian citizens into the positions slowly and systematically evacuated by the Jews. If we are not merely suffered, but actually assisted to do this, the movement will have a generally beneficial effect. There is a narrow view, from which one should free oneself, which sees in the departure of many Jews a consequent impoverishment of countries. It is different from a departure which is a result of persecution, for then property is indeed destroyed, as it is ruined in the confusion of war. Different again is the peaceable voluntary departure of colonists, wherein everything is carried out with due consideration for acquired rights, and with absolute conformity to law, openly and by light of day, under the eyes of the authorities and the control of public opinion. The emigration of Christian proletarians to different parts of the world would be brought to a standstill by the Jewish movement.
The States would have a further advantage in the enormous increase of their export trade; for, since the emigrant Jews "over there" would depend for a long time to come on European productions, they would necessarily have to import them. The local groups would keep up a just balance, and the customary needs would have to be supplied for a long time at the accustomed places.
Another, and perhaps one of the greatest advantages, would be the ensuing social relief. Social dissatisfaction would be appeased during the twenty or more years which the emigration of the Jews would occupy, and would in any case be set at rest during the whole transition period.
The shape which the social question may take depends entirely on the development of our technical resources. Steam power concentrated men in factories about machinery where they were overcrowded, and where they made one another miserable by overcrowding. Our present enormous, injudicious, and unsystematic rate of production is the cause of continual severe crises which ruin both employers and employees. Steam crowded men together; electricity will probably scatter them again, and may perhaps bring about a more prosperous condition of the labor market. In any case our technical inventors, who are the true benefactors of humanity, will continue their labors after the commencement of the emigration of the Jews, and they will discover things as marvelous as those we have already seen, or indeed more wonderful even than these.
The word "impossible" has ceased to exist in the vocabulary of technical science. If a man who lived in the last century were to return to earth, he would find the life of today full of incomprehensible magic. Wherever the moderns appear with our inventions, we transform the desert into a garden. To build a city in our time takes as many years as it formerly required centuries; America offers endless examples of this. Distance has ceased to be an obstacle. The spirit of our age has gathered fabulous treasures into its storehouse. Every day this wealth increases. A hundred thousand heads are occupied with speculations and research at every point of the globe, and what any one discovers belongs the next moment to the whole world. We ourselves will use and carry on every new attempt in our Jewish land; and just as we shall introduce the seven-hour day as an experiment for the good of humanity, so we shall proceed in everything else in the same humane spirit, making of the new land a land of experiments and a model state.
After the departure of the Jews the undertakings which they have created will remain where they were. And the Jewish spirit of enterprise will not fail wherever people welcome it. For Jewish capitalists will be glad to invest their funds where they are familiar with surrounding conditions. And whereas Jewish money is now sent out of countries on account of existing persecution and is sunk in most distant foreign undertakings, it will flow back again in consequence of this peaceable solution, and will contribute to the further progress of the countries which the Jews have left.
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Updated translation copyright 2008. This updated and corrected translation has been prepared for MidEastWeb: Middle East and Zionism-Israel.com. It may not be copied on the Web without permission. It may be printed freely for non-profit use only. Other uses require permission.
Originally translated from the German by Sylvie D'Avigdor
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