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. In so far 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 respond to 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 represent the dominus negotiorum, and the government represents the gestor.
The Romans, with their marvellous 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: firstly, for the State; and secondly, 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 administrates 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 decree from the majority would probably ruin the undertaking from the outset. For internal schisms would make the people defenceless 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 identifies himself with the people 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: "A conducting of affairs with the approbation
