University of Pennsylvania Press

Staatstheorie and the New American Science of Politics

Author(s): Sylvia D. Fries
Source: Journal of the History of Ideas, Vol. 34, No. 3 (Jul. - Sep., 1973), pp. 391-404
Published by: University of Pennsylvania Press
Stable URL: http://www.jstor.org/stable/2708960
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STAATSTHEORIE AND THE NEW AMERICAN

SCIENCE OF POLITICS
BY SYLVIA D. FRIES

American political science was, since its inception under the aegis
of Francis Lieber at the University of Carolina and later at Columbia
College, and until World War I, dominated by the German idea of
the state-the state whose origin is in history, whose nature is organic, whose essence is unity, whose function is the exercise of its
sovereign will in law, and whose ultimate end is the moral perfection
of mankind. The history of that idea in the new American science of
politics during the formative years of the discipline has much to tell
not only about the character of academic political thought during those
years, but about the vitality of America's first ideological inheritance
as well.
The German idea of the state originated in the vision of a
metaphysical unity in political and cultural nationality as evolved by
Herder, Kant, and Fichte, which was then provided with its essential
contours by Georg Friedrich Hegel; the dialectical struggle to realize
the absolute which Fichte once attributed to individuals, Hegel ascribed to civilization in its quest to realize objectively that which exists subjectively throughout history-the ideal state. And the ideal
state, or state as Idea, became for Hegel absolute reason expressed in
the sovereign national will. Hegel's emphasis upon public law and
historical evolution as the two primary means by which the state is
realized fostered the dual concentration of Staatswissenschaft on public
law and the systematization of juristic concepts, on the one hand, and
political history, on the other.
German political science, as it was developed in the nineteenth
century by Friedrich J. Stahl, Johann K. Bluntschli, Georg Waitz,
Rudolph von Gneist, Georg Jellinek, Johann Gustav Droysen, and
Heinrich von Treitschke, while certainly enjoying the variety in approach reflected in the individual works of these scholars, was nonetheless permeated with those philosophical characteristics which we
have come to associate with German Romanticism. Primary among
these were the postulates of organicism and process essential to
Hegelian metaphysics, as well as the fundamental tenet of transcendentalism-that reality is ultimately spiritual. Acceptance of a system
of thought with these philosophical underpinnings required of Americans a controversion of philosophical tenets deeply rooted in their
intellectual ancestry, viz., Cartesian dualism, Newtonian atomism,
391

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SYLVIA D. FRIES

and Lockian empiricism.Most significantto the historianof political

thought, however, is the repudiationof eighteenth-centuryindividualism requiredby the ideaof the state.
The transfer of German politicalthoughtto the new republicoccurredalong two routes:first, the emigrationto the UnitedStates from
MetternicheanEuropeof such men as FrancisLieberandCarl Schurz.
It was Lieber who, in his On Civil Liberty and Self-Government (Philadelphia, 1853), Manual of Political Ethics (Philadelphia, 1875), and

inumerablelectures, systematizedon appreciationof the necessity of

multiple and independent institutional and social relations to the
preservationof the capacity and spirit for self-government.Lieber's
political philosophyalso provideda bridgebetweenthe Americanconviction that moral rectitude is the indispensableelement in political
conduct and the view that the moralperfectionof humanityis the right
basis and end of political society which had served as the fundamental premise of German political philosophyat the start of the nineteenth century. Secondly,the German"influence"was a consequence
of the matriculationof thousandsof young Americanscholarsin German universitiesbetween 1820 and 1920,the largest numberdoing so
in the 1890'swhen the universitiesof Berlin,Leipzig,Heidelberg,and
Halle were amongthe most popular.'The signalpilgrimageof George
Bancroft-and its consequencesfor Jacksonianpoliticaland historical
thought-needs no elaborationhere. Many of the new academic professionals of the 1870's and 1880's, and the young men who were responsiblefor definingand shapingpoliticalscience as an integral discipline in this country's new universities,found intellectual nurture,
not to mention relatively easy and inexpensiveaccess to a doctoral
degree,2in the universitiesof Germany.
The substanceand methodof politicalscience whichthose whohad
studied in German universitiesintroducedinto the curriculaof their
respectiveAmericaninstitutionsreflectedin good measurethe political
science to which they had been exposed abroad. The boundariesof
the disciplinein Germanywere never clearly marked.Rather,scholarship in history and political science during the second half of the
nineteenthcentury representeda confluenceof several traditions:the
metaphysical-historicalapproach to social science derived from
'Charles F. Thwing, The American and German University (New York, 1928), 40.
2Laurence R. Veysey, The Emergence of the American University (Chicago,
1965), 130-31. Among the German trained who returned to become leading figures in
the discipline were: James B. Angell, William A. Dunning, Andrew D. White, Theodore
D. Woolsey, John W. Burgess, William M. Sloane, Woodrow Wilson, Anson D. Morse,
Charles K. Adams, William W. Folwell, Bernard Moses, Herbert B. Adams, George
G. Wilson, Edmund J. James, Charles Gross, Richard Mayo-Smith, Munroe Smith,
Clifford R. Bateman, Frank J. Goodnow, and Jeremiah Jenks.

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STAATSTHEORIE AND AMERICAN POLITICS

393

Hegel and German romanticism generally; natural science; and the

Austinian school of analytical jurisprudence. The first and second of
these traditions had their ultimate roots in philosophical idealism
and could be distinguished by their emphasis on comparative institutional and constitutional analysis, on the "critical method" and research, and on seminar teaching. However, the single most prevalent
conception borrowed by American political scientists from the
Germans was the idea of the state. This conception served as the
focus of not only the major theoretical efforts of the discipline, but
of its structure as well.
During the formative period of the discipline in America the
German approach served as an alternative within which political inquiry could be developed without its prior subservience to moral
philosophy. At Yale, for example, it was Theodore Dwight Woolsey
who as both professor and president introduced students to political
science. Francis Lieber's Civil Liberty and Self Government, and
Woolsey's own lectures, preserved in Political Science, or the State
Theoretically and Practically Considered (New York, 1878)3were the
basis of his course. Woolsey, a Liberal Republican, shared with Lieber
a conception of the state as agent for the moral betterment of man
which rested, philosophically, on Kantian foundations. At Brown the
task of inaugurating studies in political science fell to E. Benjamin
Andrews (appointed professor of history and political economy in 1882
and president in 1890), undoubtedly Gustav Droysen's most devoted disciple in the United States. At Harvard political science was
not freed from the tutelage of historians until the 1890's, but the subject was taught largely as institutional history by a prominent group
of historians, all of whom had received graduate training in Germany:
Henry Adams, Albert Bushnell Hart, Ephraim Emerton, Archibald
Coolidge, and Charles Gross. These men assured that an institutional
approach to history, and an historical approach to politics, not to
mention the heavy hand of Teutonism, would prevail during the
1870's and 1880's. In 1890-91, Ephraim Emerton complained, "there
was hardly a course in the catalogue, save History I and those given
by Emerton, which did not smack of Verfassungsgeschichte."4
While few colleges and universities failed to offer some instruction
3John C. Schwab, "The Yale College Curriculum, 1701-1901," Educational Review, 22 (June, 1901); George A. King, S. J., Theodore Dwight Woolsey: His Political
and Social Ideas (Chicago, 1956), 41-43; Anna Haddow, Political Science in American
Colleges and Universities (New York, 1939), 114-15.
4Ephraim Emerton, "History: 1838-1929," in Samuel E. Morison, ed., The Development of Harvard University Since the Inaugurationof President Eliot. 1869-1929
(Cambridge, Mass., 1930), 159; Albert B. Hart, "Government: 1874-1929," ibid.; Harvard University, The Harvard University Catalogue (Boston, 1871-1903).

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SYLVIA D. FRIES

in political science and history by the turn of the century, the earliest, most ambitious,and most self-consciousefforts to institutionalize
political science were made by Germantrained scholars at the University of Michigan, The Johns Hopkins University, and Columbia
University. The German influencewas in evidence at the University
of Michigan from the very beginning,when the universitywas organized under the Germanplanof facultygovernment.Henry P. Tappan, appointedchancellor in 1851, expressed his scorn for the "productive professions" and his enthusiasmfor the Prussian university
system, which sustainedhis visionof a "learnedclass" of men highly
cultivated in letters and science who would elevate society with their
knowledgethrough"publiclectures underthe directionof an elite corporation."5Such sentimentswon him dismissalby a suspiciousBoard
of Regents in 1863, and German influence lapsed until 1871 when
James BurrillAngell acceptedthe presidencyof the University.Angell
had taken two years graduate work in Paris and Munich,and it was
his recommendationsto the Boardof Regents that led to the establishment of the Michigan School of Political Science in 1881. Charles
KendallAdams, a facultymemberat Michigansince 1863,servedas its
first Dean. The School's course offeringsgave prominenceto political
and constitutional history. "Crowningthe whole" was a series of
courses in topics which resembledclosely the substanceof Staatswissenschaft: the idea of the state, the natureof the individual,social and
political rights, the historyof politicalideas, the governmentof cities,
theories and methodsof taxation,comparativeconstitutionallaw, comparative administrativelaw, and the history of modern diplomacy.
"The characterof the courses and the methodof instruction,"Adams
promised,"willbe essentiallythe same as those offeredandgivenin the
Schools of PoliticalScience at Paris, Leipzig,Tubingen,and Vienna."6
At The Johns Hopkins University the launching of historical
and political studies was the workof Germantrainedscholars. Austin
Scott, who instituted the American history seminar in 1876, had received his doctoratethree years earlierfrom the Universityof Leipzig.
He regardedthe developmentof constitutionsas the gradualmanifestation of historicallyevolvedlegal principles.Scott's youngercolleague,
Herbert Baxter Adams, assumed the task of furtheringthe discipline
at Johns Hopkins University after Scott left for Rutgers in 1883. A
student of JohannK. Bluntschli's,underwhomhe had taken the Ph.D.
5Portions of Tappan's University Education (1850) are reprinted in Richard
Hofstadter and Wilson Smith, eds., American Higher Education: A Documentary
History, 2 vols. (New York, 1961), 11,488-511.
6Charles K. Adams, "The Relations of Political Science to National Prosperity,"
an Address delivered at the opening of the School of Political Science at the University
of Michigan, 3 October 1881 (Ann Arbor, 1881), 19-20.

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STAATSTHEORIE AND AMERICAN POLITICS

395

at the University of Heidelberg in 1876, Adams had been immersed

in German history and political science ever since his Amherst days
when the Kantian Julius Seelye inspired the young man to abandon
journalism and to turn his talents to the study of history. Richard T.
Ely wrote of Adams, "the strongest influence on his growing mind
was that of Bluntschli to whom history was merely a handmaid to
politics."7 For two decades at Hopkins the work done in history and
political science (not organizationally separated until 1911) bore the
impress of Adams' mentor, who had enjoined his pupil: "the community is a preparatory school for the state"8-an injunction which
was reinforced in the Baltimore seminar rooms by regular use of the
writings of Sir John Robert Seelye and the English "Germanists,"
Edward A. Freeman, William Stubbs, and Sir John Henry Maine.
The German influence dominated in the person of Herbert B. Adams
and survived into the twentieth century with the addition to the staff
of Westel W. Willoughby who, although not trained in Germany, became an articulate spokesman for the Rechtstaat in America.
The undisputed leader in the movement to institutionalize political
science was John W. Burgess of the Columbia School of Political Science. When the School opened in 1880 its faculty was composed almost entirely of German trained scholars, including a small group of
students who had met with Burgess for informal post-graduate study
while he was at Amherst College and who, like Burgess, had gone
to Germany to do graduate work (Burgess had studied at Berlin,
Leipzig, and Gittin-gen).9 The system of graduate instruction in
political science at Columbia was, according to Burgess, modeled upon
"the Imperial University of Strassbourg, which had a separate faculty for Political Science, and the Ecole Libre des Sciences Politiques
at Paris."10 The program reflected all those elements for which the
German science of politics was then noted: emphasis on research and
publication, training for the professoriate, use of the historical and
comparative methods, and concentration upon the legal and constitutional aspects of politics.
Political science was recognized as a separate discipline during the
formative years only at the University of Michigan and at Columbia
7RichardT. Ely, "A Sketch of the Life and Services of Herbert Baxter Adams," in
John M. Vincent, ed., Herbert Baxter Adams: Tributes of Friends (Baltimore, 1902),
39.
81bid.,40.
9From Amherst: George H. Baker, Charles S. Smith, Frederick W. Whitbridge,
and Munroe Smith; also, Richmond Mayo-Smith and Clifford Bateman. John W.
Burgess, Reminiscences of an American Scholar (New York, 1935).
'IJohn W. Burgess to Professor Walter Willcox, 4 July 1916, quoted in Ralph G.
Hoxie, A History of the Faculty of Political Science, Columbia University (New York,
1955), 12ff.

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University. In most institutions,as at Johns Hopkins, political science was joined with history. At Yale instructionin political science
emerged from the old moral philosophycourse, while at Brownpolitical science was regardedadministrativelyas one of the social sciences.
Insofar as political science duringthe periodcould have been characterized by a residue of strong moral impulse and the historical
perspective, German influencescould only have served to reinforce
those tendencies, for the Germantheory of the state was in itself informed by the Kantian heritage and the historical school. While
German political science, itself havingno clear institutionaldomain,
could not providethe Americanscholarswith a usefulmodelof organizational structure,it did providea conceptualframeworkaroundwhich
the disciplinemightbe built.
When it came to providingthe new science with a literature,
however, the Germanbranchoffered abundantresources. Unlike the
young American historical profession,which was then bound to observe (in word, if not always in deed) the canon of primaryevidence,
the road to eminencefor the aspiringpoliticalscientistwas pavedwith
the volumes of well established "authorities." Less troubled than
their historian colleagues by possible interference of theory with
experience, the scribes of political wisdom needed only to gloss the
writingsof the Germangreats, of whom Bluntschli,von Mohl, Gneist,
and Jellinek were the most favored, and to translate this knowledge
into the Americantreatiseon representativegovernment,comparative
constitutions,etc. One such author was Jesse Macy, whose principal
works-Our Government (Boston, 1885), The English Constitution
(New York, 1897), Political Science (Chicago, 1913), and Comparative

Free Government(New York, 1915)-were well endowed with the

conventionaltruths of the English Germanists and mid-nineteenthcentury German political thought. In his Political Science, for example, Macy advancedthe Germandoctrineof the sovereignstate as
an organic communityarising from the nation, itself an ethnic and
psychiccommunityfoundedultimatelyuponkinship.
Macy's elaborationof the doctrine of the state followed closely
the path set out by Bluntschliand reaffirmedby John W. Burgess in
that he too insisted upon a distinctionbetween state and government.
Since the state "is the essential organ for human perfection," the
eighteenth-centurynotionthat individualsexist in an adverse relation
to politicalauthoritymust be replacedby an appreciationof the identity of interest of state and individual.1Macy's treatmentof the relationship of state sovereignty (which was a preconditionof the historically evolved state) and public law is all the more interesting
"Jesse Macy, Political Science (Chicago, 1913), 43.

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STAATSTHEORIE AND AMERICAN POLITICS

397

because it involved a noteworthy difficulty in definition and reasoning

which appears again and again in the work of his contemporaries. On
the one hand, Macy accepted the postulate of the positive sovereignty
of statehood as a necessary attribute of the state in its historical development. But, on the other hand, in "human society" law is not positive;
it "rests upon conscience, or the sense of right" and "it is the very
nature of law to limit the power of the sovereign."12However, if law is
a manifestation of the common will of the people, inasmuch as "law
must conform to the more or less permanent habits and customs
of the people," and if "the state . . . is the agency for expressing and

carrying into effect the common purpose," then public law and state
sovereignty must be essentially identical.13 Macy was reluctant or unable to surrender total responsibility and authority for public law
to the sovereign states, however morally perfect. In the AngloAmerican tradition, traceable to the seventeenth century at least,
civil law had originated with the individual citizen prior to the state.
This ambiguity between individualism and statism was brought into
sharp relief in the work which Macy co-authored with John Gannaway,
Comparative Free Government (New York, 1915).
The Civil War presented a profound challenge to American
political theorists, informed as they were by the utterances of both
Calhoun and Webster. When Macy and Gannaway discussed the political identity of the United States, they did so in nationalistic terms:
The United States has a governmentwhose powers are dividedbetweenthe
Nation and the States. But it is a governmentof the federal type and not a
mere confederation. . . . Sovereignty resides in the state as a whole [i.e.,

the Union] and not in the commonwealths[i.e., the individualstates] that

composeit.
Whatevermay have been the constitutionalrightof Congresswith respect
to slavery in the Territoriesor the Constitutionalrightof a State to secede,
the outcomeof the strugglewas the absolutesupremacyof the Union. ... The
UnitedStates is not merelya Confederation.
The doctrine of sovereignty which is implied by the authors' treatment
of the constitutional issues of the Civil War is one which regards sovereignty as 1) alienable, and 2) an attribute which may be acquired
by force. At the same time, however,
The Nation can exercise only thos powers that are specificallydelegated
to it by the Constitutionor are necessarily implied either by the definite
grantsor by the Constitutionas a whole.
In the case of the states the denialof power must be affirmativelyshown
1bid., 51,77, 78.
l3Ibid.

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SYLVIA D. FRIES

before its exercise can be consideredinvalid.The states are antecedentto

the Nation andoriginallypossessedall power.14
James Garner, whose Introduction to Political Science (1910)
is impressive among the efforts of his contemporaries in its thoroughness and evident mastery of its subject, advanced a theory of state
sovereignty which was, by his own admission, essentially Georg Jellinek's; that is, sovereignty is absolute and unlimitable, or "sovereignty . . . can be bound only by its own will, that is, it can only be
self-limited."'5 Neither the "laws of nature, the principles of morality,

the laws of God, the dictates of humanity and reason, the law of nations," nor the "fear of public opinion" can serve to limit sovereignty
unless the state so chooses to limit itself.16 Is such a thing as individual citizen sovereignty possible then? And if so, how meaningful is
the authority of the individual in face of, or acting through, the authority of the state? Garner attempted to deal with this problem by
insisting upon a distinction not of degree (as the divided sovereignty
of Federalism requires) but a distinction of kind. Sovereignty can
exist in several forms: titular sovereignty, legal sovereignty embodied
in "that determinate authority which is able to express in a legal formula the highest commands of the state," and political sovereignty
which "may be said to be the whole mass of the population, including
every person who contributes to the molding of public opinion." The
essential sovereign is the will of the people expressed through "legally
constituted channels. . . "17 "The distinction between legal and
political sovereignty does not rest upon the principle of divided sovereignty, but rather upon the distinction between two different manifestations of one and the same sovereignty through different channels."18 But Garner's explication of sovereignty remained bound
to an hypothesis-the state in law, or as it ought to be, rather
than the state as it might become: a political society in which political
sovereign (sovereign de facto) and legal sovereign have lost their
original identity of purpose.
In sharp contrast to the flexible, albeit ambiguous, nature of the
above works is Bernard Moses' and William Crane's Politics (1884).
Moses and Crane presented a relatively intemperate adaptation of
German political thought. In tone as well as in content their volume is
singular among the political writings of this period in that it more
14Jesse Macy and John Gannaway, Comparative Free Government (New York,
1915), 3-11.
'5James W. Garner, Introduction to Political Science: A Treatise on the Origin.
Nature, Functions. and Organizationof the State (New York, 1919), 251.
16Ibid.,253.
18Ibid.,242.
17Ibid., 240---45.

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STAATSTHEORIE AND AMERICAN POLITICS

399

clearly mirrors the Macht-Politik of the Second Reich than any other
contemporary American effort. When all the semantic exercises are
done, the state survives either on citizen virtue or on absolute
power. In terms of the American democratic faith, in terms of those
Puritans for whom the beckoning frontier lay less beyond the setting
sun than within the dark recesses of the soul, one simply could not
have it both ways. It is thus somewhat ironic that an American
book written as an introduction to the study of constitutional law
should have as one of its major effects an attempted destruction of the
principle of legitimacy in political power. Crane and Moses labored
under no such ambiguities as those which burdened the writings of
Macy and Garner. Here again is a theory of the state-but this is not
the benign state of a Theodore Dwight Woolsey, ever circumscribed
by the dictates of moral law. This is the Machtstaat-the sovereign
nation, the legal person, the social organism "for the concentration
and distribution of political power in the nation."'9 Within the state
sovereignty is tantamount to absolute, unlimited power. To Austin's
principle of the ultimate dependency of sovereign power upon the
consent, implied or expressed, of the people, the authors of Politics
added the notion of irresistible force from above. Moreover, they
adopted the German concept of the state as personality, having a will
and power of its own.20 Only when writing about government as
the chief instrument of the state were Crane and Moses willing to
make any concessions to the vox populi. Thus the authors of Politics
granted that "the government of the nation . . . exists with the consent

of the people governed." After all, "in a broad sense, every sovereign government exists because of the consent of the governed, for
if all the people so determine and so act, they can overthrow any
form of government and establish any other." So here we are again,
confronted with an absolute sovereign state, so distinct from any other
political expression that it has "an organic body" and "a will,"21 and
yet we have also a government, a mere "instrumentality" which
can be overthrown by the people. How sovereign is a government-or
state-which cannot carry out its will against the wishes of the people?
How meaningful is the authors' concession to the "consent of the
governed" if that consent is to be measured solely by the absence of violent revolution?
The efforts of Jesse Macy, James Garner, William Crane, and
'9William W. Crane and Bernard Moses, Politics: An Introduction to Comparative
Constitutional Law (New York, 1884), 1. Crane and Moses employed the terms
"sovereign nation" and "state" interchangeably.
20Ibid.,37-38, 40.
21Ibid.,40.

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SYLVIA D. FRIES

Bernard Moses illustrate some of the new political scientists' first

venturesinto systematictheory.The fact is that nearlyall theirworks,
as well as that of other contemporaries,were explicitlyor implicitly
structured around the German conception of the sovereign nationstate, and reliedheavilyon the authoritiesof Germanpoliticalscience,
thus showingthey felt keenly the need for such authorization.But this
dependencewas costly. The Americansstruggledwith the absoluteand
indivisiblesovereigntypositionwhen they foundit difficultto abandon
at the same time the more traditionalcommitment to popular sovereignty;hence the effort to distinguishbetweenthe state as a political
power or authority independentof historical accident or individual
choice, andpopularlydeterminedgovernment.
The tensionbetweenabsolutesovereigntyand individualor popular
sovereignty gave way to evasive ambiguity or uncritical acceptance in the works of the authors cited previously. However,
John W. Burgess and Westel W. Willoughbysought to resolve this
dilemma directly in their works. Both Burgess' Political Science and
Comparative Constitutional Law (1890) and The Reconciliation of
Government with Liberty (1915), well endowed with supportive ref-

erences to Germanscholarship,are infusedwith the author'sconcern

for a durable marriage of individualliberty to law; the second of
these works is addressed specifically to this problem. Throughout
Political Science and Comparative Constitutional Law Burgess' con-

ceptual separationof state fromgovernmentemerges, not surprisingly

by now, as his principalmeans of defendingindividualliberty in the
presence of absolute state sovereignty.But here Burgess' exposition
goes beyond that of his contemporaries.There are two states: the
ideal state, which has all humanityfor its citizenry(and is an essentially Hegelianconception);and the real state, or "the concept of the
state," which originates in history, and "is the state developingand
approaching perfection." The state is "all comprehensive,""permanent," and absolutely sovereign. But the absolute sovereigntyof
the state is not to be counterpoisedwith individualliberty; rather,
the absolute sovereigntyof the state-if we presupposethe "modern
national popularstate"-is the source and guarantor,not the enemy
of individualliberty. The idea of liberty is the idea "of a domain in
which the individualis referredto his own will and upon which government shall neitherencroachitself, nor permitencroachmentsfrom
any other quarter."This domainis not inviolateby the state, for "the
state is the source of individualliberty";the state is necessarily the
author of liberty because the only alternativeto sovereignauthority,
which determines the boundariesof individualfreedom, is anarchy.
The view of the state as both author and guarantorof liberty is, in

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STAATSTHEORIE AND AMERICAN POLITICS

401

Burgess' judgment, "the only view which can reconcile liberty and
law, and preserve both in proper balance."22
Yet another stage to the achievement of harmony between liberty
and law is the subject of The Reconciliation of Government and
Liberty. The necessary prerequisites for the solution of the problem
stated in the title of the book are, according to the author,
... first, the organizationof the sovereignpower,the state, back of and independentof the Government;second, the delineationby the sovereignof the
realmof IndividualImmunityagainstgovernmentalpower;andthird,the constructionby the sovereignof the organs and the procedurefor protectingthe
realmof IndividualImmunityagainstthe encroachmentsof Government.23
In practice the prerequisites were met only in those countries which
had clearly distinguishable constitutional, as opposed to statutory, liberties; the nearest to qualify was the United States.
The whole of Burgess' political science is built upon a tension
between the German doctrine of the state which, like his colleagues,
he considered the cornerstone of modern political science, and an
ideological commitment to the individualism of traditional AngloAmerican liberalism. At the heart of his efforts to distinguish between
the state and governments lay his insight that in the modern world the
theoretically sovereign voice of the people, qua an aggregate of individuals, is increasingly muffled by the mechanisms of politics which,
developing directions and momenta of their own, become ever more
foreign to the aspirations and fears of their creators. Had Burgess
been able to identify an active state, distinguishable from government
in its concrete political role, he might have solved the problem which
rightly concerned him and, in so doing, found a valid application for
Staatstheorie to American politics.
While John W. Burgess approached political science largely as an
Hegelian historian, Westel W. Willoughby approached the subject as a
jurist. His first major effort, An Examination of the Nature of the
State (1896), based upon lectures he delivered at Stanford and Johns
Hopkins universities, has a strong juristic slant which clearly reflects
the work of the Austrian jurist, Georg Jellinek, whose Gesetz und
Verordnung Willoughby relied upon frequently by his own admission.24
Willoughby argued that sovereignty is located in "that person,
22John W. Burgess, Political Science and Comparative Constitutional Law, 2
vols. (Boston, 1890), 1, 49-56, 174-77.
23Idem,The Reconciliation of Government with Liberty (New York, 1915), 289.
24Westel W. Willoughby, An Examination of the Nature of the State (New York,
1896).

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or body of persons . . . in whose hands rests the power, in the last

resort, to impose his or its will in a legal manner upon the whole
body of persons that constitute the state"; or "those persons or bodies
are the sovereigns who have the legal power of expressing the will
of the state."25 But when he turned to the origin and nature of the
American state he suggested that the question of legality was of minor
importance in comparison with the positive development of political authority after the event. Thus:
. . . we can no more obtain a final and conclusive answer to the question re-

garding the character of the Union entered into by the American people
in 1789, from the mere wordingof our fundamentalinstrumentof government, than we can from purely historical data. ...

It is quite rational to be-

lieve that in order to avoid the two horns of the dilemma,the statesmenof
that periodpurposelydeclinedto take an unequivocalposition.
Even granting that the constitutionat the time of its adoptioncreated,
and was intendedto create, a confederacy,the growthof nationalfeelingand
the interpretationof that instrumentby Congressand by the SupremeCourt
of the United States . . . soon placed beyond all doubt the character of the
union.26

Indeed, contrary to his earlier definition of sovereignty, Willoughby

declared that "the state is not amenable to the qualification of dejure
or non dejure, because it is not a creature of law....

the terms dejure

and non de jure are, however, applicable to governments" (government being only the "political machinery" of the state).27
The inspiration for Social Justice: A Critical Essay (1900) and The
Ethical Basis of Political Authority (1930) came from Thomas Hill
Green, the current spokesman for Kantian political idealism in England. The Ethical Basis of Political Authority consists of a critical
discussion of various principal theoretical explanations for the existence of political coercion, such as the historical, the force, the instinct, the divine right, and the compact theories. To begin with,
Willoughby demands that the state have an ethical basis-and this
resting on Kantian foundations rather than the Puritan legacy. The
ethical basis of the state, in Willoughby's analysis, is not fundamentally different from that which was posited by Lieber, Woolsey-and
Green. That is, the state is ethically justifiable when it guarantees to
the individual, "so far as possible, all those services," and surrounds
him "by all those conditions, which he requires for his highest self,
that is, for the satisfaction of all those desires which his truest judgment tells him are good."28 Indeed, individuals are moral entities,
25Ibid.,280, 293.
26Ibid.,270-71.
271bid.,225, 3-4.
28Idem,The Ethical Basis of Political Authority (New York, 1930), 245.

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STAATSTHEORIE AND AMERICAN POLITICS

403

and they alone can-indeed must-be held responsiblefor political

actions.29It would seem, then, that if moral responsibilityfor political
actions rests with individuals,then the final moral authorityfor political actions must also rest with individuals. Here Willoughby
proves inconsistent by arguingon several occasions that individuals
have no natural rights30and that "men can be regarded as having
moral rightsand duties only in so far as they are viewedas membersof
a society."31We can agree with the theorist that moralityis a product
of society; but can one, then, set apart the moral responsibilityof
the individual totally from that of society? And in particular, if
the individualhas no "natural right to freedom"32can he be held
ultimatelyresponsiblefor the moral qualityof the actionsof the state
which is the source of his liberties?Particularlywhen the state is not
merely the combined political authorityof an aggregate of individuals, but represents "an act of a People rather than of individuals"
predicatingthe "existence of a common or 'General will'," and is a
"juristic person" having "a unifiedwill and purpose,"33how can we
agree that ". . . the State, viewed as a person or as an abstract entity
can not be held responsible for its own acts ... It has no real will of its
own . . . morality applies only to human individuals."34Willoughby's

response,which served as his generaljustificationfor social control, is

the classical idea, revivedby Hegel, that "the individualcan, by recognizingthe justice of the will of anotherpower, make that will his very
own, andthus, thoughobeyingit, be not coercedby it."35
The question that arises is: Could Americans of the nineteenth
centuryaccept such a politicalphilosophy-or any similarto it-which
fused their multifariousaspirationsinto a "general will" and then
denied them the primacyover concerted political authorityto which
their eighteenth-centuryinheritanceentitled them? Could a political
philosophywhich servedthe needs of nationbuildingandunificationin
nineteenth-centuryGermanybe transportedto Americaand still retain
its vitality?
John W. Burgess and Westel W. Willoughbyjoined many of their
peers in the new professionin an attempt to build, upon the Staatstheorie which was to them the soundest foundationfor political science, a philosophy of American politics. The difficulties they encountered arose ultimately from their inabilityto apply the German
idea of the state to the Americanpoliticaltradition.On the one hand,
29Idem, Social Justice. A Critical Essay (New York, 1900), 229-34; The Ethical
Basis of Political Authority, 278-79.
30TheEthical Basis of Political Authority, 337, 270, 284.
32SocialJustice, 222.
3'1bid.,270.
33AnExaminationof the Nature ofthe State, 124, 135-37.
34TheEthical Basis of Political Authority, 277.
35Ibid.,259-60.

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there was the sovereign state of German political science-absolute

and self-limiting;on the other, stood the sovereigncitizen of American politics. With the device of a distinctionbetween sovereignstate
and government Burgess sought to preserve the sovereigntyof both
state and citizen. Willoughby,by adoptinga concept of the state as
juristic person, sought to preserveinviolatethe privateor social realm,
and finally turned to T. H. Green for a philosophywhich would reconcile the nature and purposes of both the individualand political
authority in the Kantianidea of freedom. Unfortunatelythe German
idea that one's "truest" will is identicalwith that of society remained
but a minority view; few outside the German school were willing to
give up the notionthat at some time and at some pointthe privateand
the public desires may collide, and when they do, the private has a
claim to right which surpasses any plea of legitimacyfrom publicauthority or a "general will." An increasingnumberof young political
scientists toward the end of the century-most notably Woodrow
Wilson, A. LawrenceLowell,ArthurF. Bentley,and J. Allen SmithabandonedStaatstheorie.In the process they also virtuallyabandoned
theory, or at least system building,as the cornerstone of political
science. Instead they pursuedpoliticalparties, congressionalcommittees, or economic interests through the maze of political decision
makingand foundactualitiesmore vital, not to mentionmore pertinent
to everyday politics,thanabstractions.
By World War I German politicalscience had almost completely
lost its former influence within the American profession. Both the
fundamentallimitation in the applicabilityof German concepts and
methods to Americanpolitical experience,and a profoundchange in
the character of American social thought caused this decline. John
Dewey, Thorstein Veblen, Justice Holmes, Charles A. Beard, and
James Harvey Robinson were not the only ones subject to what
Morton White has styled "the revolt against formalism."36Political
scientists, jurists, historians, economists, writers, poets, and artists
were venturing the notion that law, form, and structure-and inevitably truth-do not determinethe natureof humanexperienceand
conductbut are, rather,themselvesdeterminedby humanforces sometimes inscrutable,but alwaysdynamicand relativeto time andplace.
SouthernMethodistUniversity.
36Morton S. White, Social Thought in America: The Revolt Against Formalism
(Boston, 1947).

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