Origin of the State
There are many speculations to explain the origin and the genesis of the State.
1. Social Theory:
Hobbes, Locke, Rousseau and Kant may be considered as important exponent of this theory. The main theme of the theory is that free and independent individuals, living in a state of nature felt the necessity of peace and security. They, therefore, entered into a general agreement for protection of their natural rights.
Hobbes, observes that pre-political life of man was " solitary", poor, nasty, brutish, short" and full of " continual fear and danger of violent agreed to devolve their personality upon some individual or collection which is henceforth to represent them and to be considered as acting with their combined power".
According to Locke, with society becoming more complex, the want of a settled law, a known and indifferent judge and a power to back and support a sense and other such factors necessitated the renunciation of state of nature and making an agreement by the primitive man.
Rousseau, however, feels that the state of nature was one of pastoral happiness. But its uninterrupted maintenance necessitude the social contract. By this contract he lost natural liberty but gained civil liberty instead.
Kant observes: "The act by which a people is represented as constituting itself into a state is termed the original contract."
Criticisms:
The theory attributes to the primitive man the political notions of the present day which is anachronistic.
According to Austin the theory is historically false as there is no proof of such an original agreement.
Austin further observes: "A contract derives its legal validity from a positive law. By itself it cannot engender a legal duty; the duty has to be annexed by positive law. Since the inchoate subjects have yet no positive law they cannot be legally bound by the pact."
Sir Henry Maine also feels the theory as violent anachronism:
i. The theory presupposes in each individual of primitive society, knowledge, intelligence and capacity to contract.
ii. Maine observes that family and not the individual was the unit of society in the primitive times.
iii. Prof. Garner also rejects the theory "on grounds of philosophy and reason". He, however, does not deny the net contribution of the theory.
2. Matriarchal Theory
The theory has been propounded by Melennan and Morgan. They believe that the primitive state was the sum total of certain hordes living not as the present family but in sexual communism after which came group marriages and polyandry followed ultimately by patriarchal systems. The supporters of the theory for evidence rely on the conditions of the aboriginal tribes. Passing of property through the female line, recognition of relationship through females, the system of polyandry etc. are some of the examples.
Criticism:
Sir Henry Maine criticizes the theory on the ground that it ignores the mightiest of all passions, sexual jealousy. Darwinians so observes that " promiscuous intercourse in a state of nature is extremely improbable".
Prof. Lowie observes, "Sextual communism as a condition taking the place of the individual family exists nowhere at the present time; and the argument for its former existence must be rejected as unsatisfactory".
Finally, it may be stated that "Polyandry is so exceptional a conjugal form that it would be rash to rear on it a theory of the development of human race".
3. Patriarchal Theory:
The theory was propounded by Plato and Aristotle. They held the view that in primitive society the eldest male member was supreme in his family group. There were "neither assemblies for consultation nor themistas or dooms but each exercised jurisdiction over his wives and children".
Patria Potestas of the pater families that is unqualified paternal power
The Roman Law as also of Hindu joint family confirm the belief that the families in the primitive society were patriarchal rather than matriarchal
Sir Henry Maine is also a strong supporters of this theory. He says "The most early universal fact which can be asserted respecting the origin of the political communities called States is that they were formed by the coalescence of groups, the original group having been in no case smaller than the patriarchal family family. He continues, "The aggregation of families from the gens or house. The aggregation of houses makes the tribe. The aggregation of tribes constitutes the commonwealth(state)."
Thus, the unit of ancient society was not the individual but the family. The paternal control of the family forms the beginning of Government and social control.
Criticism:
Herbert Spencer, however, disagrees with this view. According to him societies were originally matriarchal and patriarchal in character.
4. Natural theory:
Aristotle said that man is asocial animal and it is his natural instinct that he loves to live in society and this sociability of man created the state. State is meant to fulfil the necessities of man. There is no conflict between the interest of man and that of the state. They are similar and cannot live without state.
5. Theory of Divine Origin of the State:
According to this theory state was created by God. The king had the power to govern and control the people by the Divine Authority. Mention may also be made of the theory of divine origin of the state. According to this theory God himself ordained the establishment of State. This theory was developed in the middle ages in Europe because of the influence of Christianity which regarded King as the representative of God having divine right to rule. The Islamic countries also regarded the King having as a shadow of God. Hindu mythology also accepted the divine right of king to rule over his subjects.
6. Force theory:
According to this theory State came into being on account of the use of force. State came into being on account of subjecting the weak by the strong.
The theory seems to become more convincing than any other theory.
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