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the survivals of things once held to be quite substantial, but now regarded and used only as formal principles ; and Rous- seau's contract, as I conceive it, is really one of them ; not a positive legal instrument, enacted at some particular time, but the validating principle of all law; in short, only Rousseau's fictitious way of saying, with Locke, that even in a state of nature man is rational and sanctions law and society. Of course, to make the contract to which society owes its exist- ence only a formal principle was to make existing governments totter.
Bluntschli objects to Rousseau's theory, among other reasons, because "history does not afford a single instance in which a state has really been brought about by contract between indi- viduals," 1 and this objection, it may be added, troubled Locke, who must be confessed, in view of his virtually making govern- ment natural or original, to have met it very feebly. 2 Bluntschli's criticism, however, although plausible enough, is not altogether fair, either to Rousseau or to the contract philosophers generally. Rousseau's conception of nature, of the will of all and of the con- tract itself that only makes a people a people, simply turns individuals, society, and positive contract into sheer forms, so that an exemplifying instance in positive history is neither needed nor to be expected. Bluntschli himself admits 3 that the contract theory "obtained a fatal authority at the time of the French Revolution." So it did. The Revolution, however, sprang from the recognition of contract, individual and society as artificial or formal. Hence the cry, "Return to nature!" to nature, where men are equal and where law or contract is only formal or quasi, capable of any content or substance that a changing experience may present, and so absolute and inviolable only as a principle, being subject to amendment without limit so soon as any specific character, any applied form, is given it. And when in history has a pure principle been positively and purely exem- plified ? A pure principle is invisible ; it is not one of the sepa- rate things of time.
1 Theory of the State, p. 295 (Macmillan, 1895).
- Treatises of Government, Book II, chap. viii. ' Op. cit., p. 294.
