Nation and Territorial Sovereignty

Introduction

Focus of the Article

The article aims at theoretical and historicalinvestigation of various patterns of communities, theprinciples of their formation, as well as their relation topower status and territory; I plan to demonstrate thatnation, from the perspective of history, is a long processappearing at a certain time and in a certain place –somewhat at the beginning of the 14th century in Europe, andexacting at the end of the 18th century, and from thetheoretical perspective, it is a political unity of peoplewith the peculiar attitude to the territory, i.e.territorial sovereignty, at least when nation has hadtraceable political or legal consequences1.

I must especially stress the importance of theoreticalapproach. Many historians avoid theoretical attitude. In myview, such one-sided methodological approach makes not onlyimpossible any exhaustive studies but also leads to commoninaccuracies, both in theoretical as well as historicalsense. First of all, nation is not only a historicaloccurrence which emerged “naturally” but it is also atheoretical and artificial construction which was yieldedand molded by theoretical and law paradigms invented andelaborated by intellectuals or elites2. These theories,1 Such a limited approach raises the legitimate inquiry if nation canexist not entailing any perceptible political or legal consequences, butonly cultural or ethnographical ones. One of the objectives of theresearch is to demonstrate that nation is essentially a politicalphenomenon. 2 The significance of intellectuals and elites in the phases A andparticularly B within the threefold development of nation, is stressedby Erick Hobsbaum: “фаза А относилась исключительно к сферам культуры,фольклора и литературы, а ее политическое и даже национальноевоздействие было не более существенным, чем то влияние, которое трудычленов Общества цыганского фольклора (не-цыган) оказывают на субъектовэтих исследований. На фазе В мы уже находим группу пионеров и активныхсторонников "национальной идеи", а также первые признаки собственнополитической агитации в ее пользу… Переход от фазы В к фазе С - это,бесспорно, ключевой момент в истории национальных движений,” Эрик

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doctrinal constructions and concepts are an integral part ofhistorical studies as well. Secondly, precise history ofnation and its various aspects requires thoroughlyelaborated theoretical frame in order not to allow precisionof concepts slipping into obscurity of time.

Хобсбаум, Нации и национализм после 1780 г,http :// www . bookssite . ru / scr / read _130537_0. html .

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Criticism and Suggested Propositions

In the section I will briefly reckon dispositionscommonly attributed to nation and criticize the attitude.

Usually scholars emphasize a certain disposition (or acomplex of dispositions) as necessarily sufficient fornation. These attributes are language or narrative,coalition of print-capitalism with Protestantism3 and3 “The coalition between Protestantism and print-capitalism exploitingcheap popular editions, quickly created large new reading publics - notleast among merchants and women, who typically knew little or no Latin –and simultaneously mobilized them for political purposes,” BenedictAnderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism,(London: Verso, 1991), 40; “These print-language laid the bases fornational consciousness in three distinct ways. First and foremost, theycreated unified fields of exchange and communication below Latin andabove spoken vernaculars… Second, print-capitalism gave a new fixity tolanguage, which in the long run helped to build that image of antiquityso central to the subjective ides of the nation … Third, print-capitalism created language-of power of a kind different from the olderadministrative vernaculars. Certain dialects inevitably ‘closer’ to eachprint-language and dominated their final forms. Their disadvantageouscousins, still assimilable to the emerging print-language, lost caste,above all because they were unsuccessful (or only relatively successful)in insisting on their own print-form,” ibid, 44-45.

I would argue that all the threefold print-linguistic aspect per seis not necessary conditions for forming national consciousness althoughthey are supporting conditions for fostering them. Firstly, the language“below Latin” and “above spoken vernaculars” seems doubtful in thecreating unified fields of exchange and communication among the native-speakers of the different languages like Spaniards and Englishmen; ittends rather opposite: Latin being the only unifying linguisticcondition for the Western Christendom, at least in the intellectualfield, religion, law and diplomacy, would hardly “freely concede” to avernacular unless certain forcible policy. “Vernacularisation” of Europewhich affected the universities as well (firstly Halle in the 17th

century), would be disintegrating factor, at least among scholars.Besides, replacement of Latin by vernacular languages within thescholarly milieu as well as law practice and diplomacy must have beenassociated with difficulties, which could not be feasible unless certainproject and decisive policy.

Moreover, a print-vernacular language must have been even animpediment in communication since the speaker in “cousin-dialects” werethe overwhelming majority which ought to be exterminated in order tomake cousin-dialect speakers to shift in the print vernacular. At themoment of the French revolution, the vast majority of Bourbons, subjects

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"homogenous, empty time"4, religion5, imaginary or realcommon history, traditions, sentiments of pride orhumiliation, i.e. common sympathies6, “spiritual nature”7 or“self-nourishing character8,” ethnicity, race or tribe9,common national economy and customs10, etc. All of them mayproportionally strengthen or when absent weaken nationalsentiments.11 Yet these reckoned conditions12 alone maycreate only linguistic, religious, congenial, economic,anthropological or whatever groups or communities but theyspoke of 33 patois; only after foundation of the republic and one-centurybrutal policy they were subsequently banned. In Italy, the Tuscandialect, which would become “national language,” at the spot ofunification was spoken only by 2.5% of the population: “...(для Италиина момент объединения его определяли в 2,5%), тогда как остальныеговорили на различных диалектах и часто не понимали друг друга,” ЭрикХобсбаум, Нации и национализм после 1780 г,

http://www.bookssite.ru/scr/read_130537_0.html. These examples lead to the opposite conclusion than that of

Anderson: linguistic integration and homogeneity has been achievedrather thanks to decisive policy and certain political project. Ingeneral, if languages are not coerced to converge to a certainstandardized language, in the “natural state” they are inclined todiversification than homogeneity both, synchronically as well asdiachronically.

Secondly, the argument of the fixity to language due to spread ofprinted literature seems very tenuous as well. It is true that, ineconomic sense, to print in any vernacular large number of editions thenin numerous dialects fewer must have been more efficient, but again thiseconomic argument does not demonstrate how appearance of large amount ofthe printed literature in the language understood by few could make vastmajority read it.

Von Mises also accentuates the importance of the language for theformation of the national consciousness: “In learning the language, thechild absorbs a way of thinking and of expressing his thoughts that ispredetermined by the language and so he receives a stamp that he canscarcely remove from his life. The language opens up the way for aperson of exchanging thoughts with all those who use it; he caninfluence them and receive influence from them. Community of languagebinds and difference of language separates persons and peoples. Ifsomeone finds the explanation of the nation as a speech communityperhaps too paltry, let him just consider what immense significancelanguage has for thinking and for the expression of thought, for socialrelations, and for all activities of life,” Ludvig von Mises, Nation,State, and Economy: Contributions to the Politics and History of Our Time, translated byLeland B. Yeager, (n.d., 1918), 38.

I would only admit “immense significance” of language. Again, suchan attitude does not explain either how a certain dialect becomes a

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are neither necessarily nor sufficient to form nation.Except them there is needed i) a very specific trait whichcan be called “national” and cannot be attributed to anyother community than nation, and ii) certain politicalpower, force or will which enables this unity to become“political,” act efficiently, and even embody, reflect orexpress all or part of reckoned dispositions.

Nation as Possessor of Territorial Sovereigntydominating languages or why particularly the mother language forms suchand such mentality. Let me concede (I would also mention immediate anddirect relations which are not necessarily linguistic and whichcontribute no less than language) that mentality is formed by a languagebut that does not explain why precisely national mentality is formed bya vernacular language; national mentality can be fostered by a foreignlanguage, while the vernacular might cultivate anti-nationalisticsentiments with the same success; or the same sentiments can be formedby a “cousin-dialect” as well.

The importance which the scholarship ascribes to language, is infact projection of its modern significance to past. Not only inhistorical (excluding Greek polis where speech and rhetoric was thecenter of political life) but also in pre-historical times language as acondition of unity played little role. E.g. some tribes might evenincorporate people speaking different languages: “…въ грубыхъ и отчастикочевыхъ общинахъ встръчаeтся значительное число людей, совершенноразличныхъ типовъ и отличающихся другъ друга даже по языку; нo что, тъмъне менъе, всъ они соеденены вмъстъ обширными группами и носятъ одни и тъже общiя названiя,” Генри Сёмнер Мэн, Древнейшая история учреждений,переводъ съ англiйскаго А. П. Нахимова, (С.-Петербургъ: Издание редакциижурнала “Знание”, 1876), 58. Nation also might consist of peoplespeaking different languages as well as different nations can speak thesame language, e.g. the Swiss nation consists of people speaking fourlanguages while Spaniards and the majority nations of South Americaspeak the same language: “существуют разныя нацiя, говгрящiя на одномъ итомъ же языкъ (англичане–говорящiе по-англiйскiй ирландцы–американцы,испенцы–говорящiя по-испански американскiя нацiи, португальцы-бразильцы,датчане-норвежцы и т.ж.), какъ съ другой стороны существуютъ небольшiяобъединенiя общностью языка группы или части различных по языку племенъ,которые считают себя не только политически, но нацiонально объединеннымисъ народами, говорящими на других языкахъ, какъ напр., баски-испанцы,бретонцы-французы, валiйцы-англичане, ретро-романы-остальные швейцары…хорваты и сербы говорятъ на одномъ и томъ же языкъ, но первыепринадлежатъ къ римско-католической, а послъднiе къ греческой церкви ироэтому считают себя разныит нацiями,” Георгъ Еллинекъ, Общее ученiе огосударствъ, перевод с немецкого n.d., (С.-Петербург: ИзданiеЮридического Книжнаго Магазина, 1908), 85. “La langue invite à se réunir; elle n'y force pas. Les États-Unis et l'Angleterre, l'Amérique

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From the last statement it follows that nation is apolitical entity, and, I would add, peculiarly political.Here I would only intuitively postulate two crucial featureswhat make nation’s political peculiarity, which I willexamine later more thoroughly:

i) the notion of sovereignty: popular sovereignty ischaracteristic only to nation, both in theoretical sense aswell as historical perspective. It is self-evident thatespagnole et l'Espagne parlent la même langue et ne forment pas uneseule nation. Au contraire, la Suisse, si bien faite, puisqu'elle a étéfaite par l'assentiment de ses différentes parties, compte trois ouquatre langues. Il y a dans l'homme quelque chose de supérieur à lalangue : c'est la volonté. La volonté de la Suisse d'être unie, malgréla variété de ses idiomes, est un fait bien plus important qu'unesimilitude souvent obtenue par des vexations,” Ernest Renan, Qu'est-cequ'une nation?: Conférence faite en Sorbonne, le 11 mars 1882, chapitre 2, II.

Finally I would adduce the case of the Georgians pertaining to theclass of the same nation but speaking different languages. At least twoGeorgian ethnicities, Megrelians and Svanetians (excluding Abkhaziansand Osetians who pertain to the diverse from Kartvelian (SouthernCaucasian linguistic group) speak different languages. However, thelinguistic diversities do not put under the suspicion their affiliationwith the other Georgian nation. 4 “What has come to take the place of the medieval conception ofsimultaneity-along-time is, to borrow again from Benjamin, an idea of‘homogeneous, empty time,’ in which simultaneity is, as it were,transverse, cross-time, marked not by prefiguring and fulfillment, butby temporal coincidence, and measured by clock and calendar,” BenedictAnderson, Imagined Communities, 24 ;

“The idea of a sociological organism moving calendrically throughhomogenous, empty time is a precise analogue of the idea of the nation,which is conceived as a solid community moving steadily down (or up)history. An American will never meet, or even know the names of morethan a handful of his 240,000-odd fellow-Americans. He has no idea ofwhat they are up to at any one time. But he has complete confidence intheir steady, anonymous, simultaneous activity,” ibid., 26.

The idea sounds interesting, but controversial. Why thecomprehension of solid body unchangeably moving through homogenous timecan be the peculiarity of only nation? From small tribe up to race or acertain profession or religious group, any community with the samesuccess can claim being of immemorial origin and preserving primordialpurity.

Furthermore, as soon as nation claims to be a subject and authorof history, time cannot be homogenous, since history consisting ofunique happenings constructs unique time. I would suggest a contrarystatement: any nation as soon as it claims to be a subject of history,

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members of any nation regard themselves as the supremesource and indisputable judge in the political andlegislative matters.

ii) the concept of political territory.

Sovereignty, Political Territory and Territorial Sovereignty

According to law historians, sovereignty originally wasa political notion and only afterwards it was transformedviews itself within the heterogenic time consisting of uniquehappenings, which are thought to be product of the nation’s activity. 5 As in the case of the Serbs and Croats. 6 Sentiments or feelings can arise only after preceding respectivedisposition, impression or image. E.g. sentiment of pride or humiliationcan appear only after the impression, imprinting or image what pride orhumiliation is. The case of national pride or humiliation is even morecomplicated: one must have already felt as a member of a certain nationand, in addition have comprehension of very particular kind of pride andhumiliation. Shortly, psychological dispositions, although concomitant,affecting or emanating from national consciousness cannot explainnation. Indeed, not knowing what “nation” is, the expression “nationalsentiments” is meaningless. Consequently, I regard this excerpt as onlydescriptive accentuation of the national sentiments: “A nationality, isif they are united among themselves by common sympathies, which do notexist between them and any others…” John Stuart Mill, Consideration onRepresentative Government, (London: Parket, Son, And Bourn, West Strand,1861), 287. The next excerpt proves sentiments to be only effects ofsome causes: “this feeling of nationality may have been generated byvarious causes,” ibid.

See also Erns Renan, particularly the importance of suffer andsucrifice: “Dans le passé, un héritage de gloire et de regrets àpartager, dans l'avenir un même programme à réaliser ; avoir souffert,joui, espéré ensemble, voilà ce qui vaut mieux que des douanes communeset des frontières conformes aux idées stratégiques ; voilà ce que l'oncomprend malgré les diversités de race et de langue. Je disais tout àl'heure : «avoir souffert ensemble» ; oui, la souffrance en commun unitplus que la joie. En fait de souvenirs nationaux, les deuils valentmieux que les triomphes, car ils imposent des devoirs, ils commandentl'effort en commun. Une nation est donc une grande solidarité,constituée par le sentiment des sacrifices qu'on a faits et de ceuxqu'on est disposé à faire encore,” Ernest Renan, Qu'est-ce qu'une nation?:Conférence faite en Sorbonne, le 11 mars 1882, chapitre 3.

I would hypothesize that Ernst Renan’s remark on suffer andsacrifice refers to the very concrete historical event, the FrenchRevolution, when through disgusting sacrifice, named as political terrorand genocide, has been born the first nation in the history. However,sacrifice seems to be universally indispensable in the birth of any

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into a law theory13. It appeared as the political-legaldoctrine concerning the controversy between the French kingson the one hand and on the other one Pope, Emperor andlesser vassals. As a theoretical concept, firstly, it wasintroduced at the end of the 13th century.14 I would mentionthree authors through whose works the concept is widelyknown: Jean Bodin’s Les Six livres de la République published in

nation. 7 Johann Gottfried von Herder, Addresses to the German Nation (1806). Needlessto say, that such vague metaphors are fruitless: replacing e.g. “Germannation” by no less “German spiritual character” do not make the caseclearer. “Une nation est une âme, un principe spirituel. Deux choses qui, àvrai dire, n'en font qu'une, constituent cette âme, ce principespirituel. L'une est dans le passé, l'autre dans le présent. L'une estla possession en commun d'un riche legs de souvenirs ; l'autre est leconsentement actuel, le désir de vivre ensemble, la volonté de continuerà faire valoir l'héritage qu'on a reçu indivis,” Ernest Renan, Qu'est-cequ'une nation?: Conférence faite en Sorbonne, le 11 mars 1882, chapitre 3.8 Johann Gottfried von Herder: Materials for the Philosophy of theHistory of Mankind, 1784.9 Hereafter I would prefer the term “tribe” instead “ethnicity” or“race”: “A people share a common ethnicity insofar as they share a mythof common descent—that is, insofar as they believe themselves to bedescended from common ancestors… for “race” can be thought of as aconcept that combines two ideas. It supplements the notion of genealogywith the notion of some innate traits that are genealogicallytransmitted,” Abash Abizadeh, Ethnicity, Race, and a Possible Humanity, (n.d.),25.

The conceptual distinction between “ethnicity” and “race” seems tobe the presence or absence of the imaginary or real innate traits. Thisdistinction does not seem essential for nation. Since the presentresearch concerns only nation and its minimally necessary condition andis not focused on ethnic or racial issues, in order to avoid possiblenotional confuse, hereafter I will use only “tribe” discarding theconnotation of innate traits all together. Under “tribe” I will meanonly real or imaginary consanguinity and common progenitor, i.e. closerto the meaning of “ethnicity.”10 I would agree that the strong consolidation of nation is impossiblewithout national economy. Moreover, perhaps economy is the very, if notthe only, common sphere that overlaps the both, interests and activitiesof commoners. At least partially, unification of Germany in 1871 wasfruits of German Zollverein (Customs Union) along with diplomacy andpolicy of Otto von Bismarck. But again, national or common economy eventhough strengthening or even instigating nation-creation trend, is not

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1576, Rousseau’s Social Contract, and Carl Schmitt’s The Concept ofthe Political and Political Theology.

At this phase I would deal only with two importantissues, which made possible full elaboration of, or, evenmade possible the notion of sovereignty as such and itsefficient application in real politics: firstly, politicalauthority’s supremacy over law and secondly, politicalterritory.

an essential condition which makes nation as such; indeed, thedefinition “nation is a unity of people who has common economy” soundstenuous: any unity of people, from tribe to empire might have commoneconomy and common economy can lead to any kind of community, state,confederation or empire. 11 “Нацiя по сущесутву имътъ д и н а м и ч е с к i й х а р а к т е ръ. Народъ можетъ быть нацiей въ большей или меньшей степени, т.е. чъмъслабъе чувство культурнаго единства, тъмъ менъе ръзко выражена нацiя,чъмъ больше число и существенъй свойство объединяющих культурныхъэлементовъ, тъмъ сильнъе и глубже сознанiе единства въ нацiональнойгруппъ,” Георгъ Еллинекъ, Общее ученiе о государствъ, 86. I would not agreewith the opinion that “certain people can be more or less nation.” Iwould rather precise to say that national sentiments of a certain nationcan be more or less intense. In my view, cultural identity is the leastfactor in the creation or unification of any nation although it mightmostly affect national sentiments. There are nations who consist ofpeoples of diverse cultures, like the Bavarians and Prussians, who oftenwere even enemies. Sometimes the people of the same culture and historycreate different nations as in the case of the Polish and Lithuaniannations who had the same religion, state, and history, at least, from1385, when the Polish-Lithuanian Union was created, to 1772, whenRzeczpospolita was firstly partitioned by Austria and Russia.

In addition, the culture which later acquires national content,initially could have only social acumen as in the case of the GermanRomanticistic nationalism which became “German” and patriotic only inthe 19 the century while in the second half of the 18th century, whenthe first feeble attempts of the creation of the German culture appearedin literature, theatre, opera and philosophy, Klopstock, Schiller,Goethe and others were regarded as the representatives of exclusivelyburgers’ culture, namely, as Norbert Elias says, mainly that of pastor’sand professor’s, versus the dominating court or princely culture whichwas linguistically French and “spiritually” aristocratic. However laterin the 19th century, the opposition – aristocratic-bourgeois was“translated” into opposition of German-French and the sharp demarcationbetween arrogant German aristocrat and disdained German burger wasmerged. The same transition from social to national took place inFrance: since there had not been an impenetrable barrier betweenaristocracy and the third estate, the aristocratic culture was

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The shift from “what is just” [id quod justum est] to thewill of a ruler in the mediaeval Europe15 was shift from thesubordinated position of the ruler to law to thetheoretically unrestricted will of a sovereign. If beforethe area of law and lawmaking had been autonomous and evenhad restricted the power of a public authority, since theshift, sovereign became superior and the only source forlaw. Political theory formulated this shift cunningly andtersely: auctoritas, non veritas facit legem16. The formula and theidea that a political authority includes lawgivingprerogative and cannot be restricted unless by itself becameas self-evident and principal proposition in the laterpolitical and law theory: at the end of the 13the centurythe inventor of the concept of sovereignty, Beaumanoir

transmitted and transformed by bourgeoisie as the national Frenchculture in the 19th century 12 To the enumerated conditions I would add the rise of the control ofaffects and “wall among bodies” which so brilliantly described NorbertElias in his Über Prozess der Zivilisation. As we will see infra, nation is apurely imaginary society. However there is no possibility to establishfictional “ties” among the members of any society when the immediate andinterpersonal relations bound them into far more solid community;interpersonal relations are simpler and natural in all respects, andthus far more competitive than any indirect fictional relation whichneeds not only special education, artificially elaborated means ofcommunication and certain level of abstract thinking, but also far morepowerful emotional content in order to overwhelm the emotions andaffection-aversion inevitably concomitant with real and immediateinterpersonal relations.13 ”Суверенитетъ по своему историческому происхожденiю естьпредставленiе политическое, лишь впоследствии превратившееся въправовое,” Георгъ Еллинекъ, Общее ученiе о государствъ, 317.14 “Къ концу XIII въка впервые провозглашается положенiе, что корольsovrains есть всего королевства, стоящiй недь баронами, такжепризневаеемыми суверенными,” Георгъ Еллинекъ, Общее ученiе о государствъ,327.15 ”Право в средние века не имело полноты и стабильности, какие оноприобрело в наше время. Власть не брала на себя руководство егоразвитием. Право понималось как выражение справедливости (id quod justumest) и не отождествлялось с приказами суверена,” Рене Давид, Основныеправовые системы современности, Перевод с французского доктораюридических наук профессора В.А. Туманова, (Москва: Прогресс, 1988),23.16 Power, not truth produces law.

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deduced free lawmaking power of King from sovereignty17;Jean Bodin, among 9 attributes of a sovereign king,18 hasemphasized that “power of making and unmaking law… strictlyspeaking is the unique attribute of sovereign power”19;Rousseau also lengthily argued that the lawmaking functionis the only sovereign’s, i.e. whole people’s general will’s(volonté generalé) prerogative. This very modernunderstanding of law as the only sovereign’s, people’s will,hardly would be possible if in Europe law steadily has notbeen identified with the will and commands of sovereigninstead of justice20.

In order to strengthen the assumption I would refer tomediaeval military law. Although lawmaking for the modernpolitical and legal theory as well as practice seems themost prerogative of any authority, from the historical viewthat is not always true. in the Middle Ages not onlylawmaking was not a function of authority but another no

17 “Въ качествъ признаковъ этого суверенитета приводитъ право короля наверховную юрисдикцiю «le général garde de son roiaume», и изъ которогоонъ – идя впереди своего времени – выводитъ свободную законодательнуювласть короля «por le profit du royaume»,” Георгъ Еллинекъ, Общее ученiе огосударствъ, 327.18 “All the other attributes and rights of sovereignty are included inthis power of [1] making and unmaking law, so that strictly speakingthis is the unique attribute of sovereign power. It includes all otherrights of sovereignty, that is to say of making [2] peace and war, ofhearing appeals from the sentences of all [3] courts whatsoever, of [4]appointing and dismissing the great officers of state; of [5] taxing, orgranting [6] privileges of exemption to all subjects, of appreciating ordepreciating the value and weight of the [7] coinage, of receiving [8]oaths of fidelity from subjects and liege-vassals alike, withoutexception of any other to whom faith is due. ... With this right iscoupled the right of [9] pardoning convicted persons, and so ofoverruling the sentences of his own courts, in mitigation of theseverity,” Jean Bodin, Six Books of Commonwealth, translated by M. J.Tooley, Book 1, Chapter VIII.19 Ibid, Book 1, Chapter VIII; “The word law signifies the right command of that person, or thosepersons, who have absolute authority … the law is the rightful commandof the sovereign,” ibid, Book 1, Chapter VIII.20 “Во всех европейских странах, правда в разной степени, правоотождествлялось с приказами суверена, но перестало отождествлятьсясо справедливостью,” Рене Давид, Основные правовые системы современности,30-31.

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less important prerogative of any sovereign, levy of war,was not exclusively any public authority’s right.

Firstly, the feudal privilege to private war (guerrecouverte) was inalienable right of any noble that wouldcertainly impede to levy public war (bellum hostile). Thisimpediment must have been more “tangible” during greatstruggles such as the One Hundreds’ War when a long seriesof ordinances of the French Kings forbade all private armedconflicts while kingdom was at war21. That is true that themeasure would increase the King’s authority what was causingthe feudal privilege to be ceased to operate during theWar22 yet before the War King’s right was significantlylimited.

Secondly, the discrepancies among feudalists,papalists, imperialists and apologists of regna concerningthe right to public war leads to the conclusions that therewas univocal prerogative to levy public war. The firstparty, that of extreme feudalists like Beaumanoir, said onfeudal war as a privilege of any baron;23 the second view,that of papalists, reserved the supreme right of therevision of the just war for pope;24 the imperialists’regarded any war, even mere carrying of arms, as unjustunless stipulated by the Emperor’s license.25 Besides thefeudalists, papalists and imperialists there stood theapologists of regna who limited the right of levying war toking (particularly those of France and Sicily) on thegrounds that king is emperor in his realm.26 In addition tothe disagreements, the case was aggravated by complicatedhierarchical subordination: e.g. the Duke of Burgundy hadnot one but two suzerains, the King of France and theEmperor. If he had wished to levy war, must he have asked

21 H. Keen, The Laws of War in the Late Middle Ages, (London: Routledge & Kegan Paul, 1965), 74.22 Ibid., 73.23 H. Keen, The Laws of War in the Late Middle Ages, 72.24 “Neither kings nor emperors can make war with one another, unless their rights have been reviewed before their superior, that is o say thePope, who wields the swords of both spiritual and secular power,” Henry of Gorinchen, De Justo Bello, porp.9, quoted from H. Keen, The Laws of War in the Late Middle Ages, 74.25 H. Keen, The Laws of War in the Late Middle Ages, 75.26 Ibid., 75-76.

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one of them, or both, or neither, and would have been thewar public or private?27 That is true, what was in hands offour, was steadily appeared in those of one, i.e. that ofsovereign king after the appearance of national armies andthrough the successful enforcement of the rule that no manshould take up arms unless he was in the pay of a prince,28

but before the prerogative was sized by sovereign kings, itungrounded to speak about any prerogative to levy war andrespectively – sovereignty.

Thirdly, the research would most probably strengthenthe suggested conjecture that one of the branches of law,that of war and its source as well as military courts weresuperior over princes, any other authority or pragmaticpolitics:

But since the law of arms was founded in the jus gentium,which even a prince could not lawfully flout, theopinion of those expert in it was binding on any manwho bore arms, no matter what his status. It was thelaw, and not any man or any court, which was trulysovereign.29

To the best of my knowledge, this very shift has notbeen studied in the political theory thoroughly. Some lawhistorians have only mentioned it as a fact. The shift from“just” law, that is to say pre-sovereign state, tosovereignty needs more meticulous attention since the shifthas entailed fundamental transformation of political as wellas law paradigms leading to the unrestricted politicalpragmatism, expansion of power status in the absolutisticmanner and political Machiavellism.

Most recently, in law philosophy Carl Schmitttheoretically has elaborated the doctrine on unlimitedsovereignty in the just mentioned absolutistic manner. Iwould give the attention to the doctrine in order to refuteSchmitt’s view that sovereignty has theoretically absolutefoundation and reflects fundamental human condition.

27 Ibid., 77.28 Ibid, 117.29 Ibid, 50. On legal basis see ibid., 1-22.

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Carl Schmitt postulates the concept of “Political”30 asthe primordial and existential opposition of friend-foewhich cannot be subordinated to any other value orinstitution, whether religious, ethical, aesthetic, just oreconomic, and which requires “sovereign… who decides on theexception31,” who possesses the plentitude and the monopolyof power "mystically produced"32. Certainly, the “extremism”of the political expedience associated with limitlesssovereignty, which is the ramification of the irreconcilablecollision between friends and foes, is not the only humanexistential and the absolute state as claims Schmitt. IfCarl Schmitt were right, any other value or institutionought to be subordinated as well as derived from his conceptof Political. However, at least some values and institutionsare, or at least could be, autonomous or free fromcontroversy friends-foes, and sometimes even work againstthis controversy “favoring” foes and “disgracing” friends.

There can be seen various motifs in Carl Schmitt’sattempt: it might be theoretical criticism of the liberalconstruction of sovereignty, which interprets sovereigntyas, although initially unrestricted power but, afterestablishing law order self-limiting33; the attempt also

30 “The distinction of friend and enemy denotes the utmost degree ofintensity of a union or separation, of an association or dissociation.It can exist, theoretically and practically, without havingsimultaneously to draw upon all those moral, aesthetic, economic, orother distinctions. The political enemy need not be morally evil oraesthetically ugly; he need not appear as an economic competitor, and itmay even be advantageous to engage with him in business transaction. Buthe is, nevertheless, the other, the stranger; and it is sufficient forhis nature that he is, in a specially intense way, existentially somethingdifferent and alien, so that in the extreme case conflicts with him are alwayspossible. These can neither be decided by a previously determined normnor by the judgment of a disinterested and therefore neutral thirdparty,” Carl Schmitt, The Concept of the Political, 26-27.31 Carl Schmitt, Political Theology, 5. 32“The concept of sovereignty in the theory of the state and the theoryof “the sole supremacy of the state” make the state an abstract personso to speak, a unicum sui generis, with a monopoly of power “mysticallyproduced,” ibid., 39.33 “Суверенитетъ есть не безграничность, а способность юридически несвязанной внъшними силами государственной власти къ исключительномусамоопределенiю, а потому и самоограниченiю путемъ установелнiюправопорядка,” Георгъ Еллинекъ, Общее ученiе о государствъ, 352.

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might be theoretical support of Nazi regime, the thirdReich’s totalitarianism, total wars and atrocities. But Iwould discard any personal motives or political “landscape”and concentrate only on the criticism of the cornerstone ofhis doctrine. According to him, understanding of politicsand wars as based only on irreconcilable opposition friend-foe and proving any expediency in politics or war by thewould-be is the existential human condition. The attitude,in fact reflects the recent approach to wars and politics,and does not have anything common with primordial orabsolute human conditions. I would adduce Eric Hobsbawm’sview: unlike old aristocratic wars carried by the warriorsof the same social standing, in democratized wars, when massnational feelings are fully mobilized, ethical, aesthetic,or other principles are unable to limit atrocities andpolitical pragmatism.34

Carl Schmitt’ construction of Sovereignty, as the unconditionaland theoretically absolute state, implies criticism of the historicalschool of law who considered sovereignty as historical but not absoluteconcept:

“…cуверенитетъ есть не абсолютная, а историческая категорiя,”Георгъ Еллинекъ, Общее ученiе о государствъ, 356.34“One major reason was the strange democratization of war. Totalconflicts turned into ‘people’s wars’, both because civilians andcivilian life became the proper, and sometimes the main, targets ofstrategy, and because in democratic wars, as in democratic politics,adversaries are naturally demonized in order to make them properlyhateful or at least despicable. Wars conducted on both by professionals,or specialists, especially those of similar social standing, do notexclude mutual respect and acceptance of rules, or even chivalry…Professionals of politics and diplomacy, when untrammeled by the demandsof votes or newspapers, can declare was or negotiate peace with no hardfeelings about the other side, like boxers who shake hands before theycome out fighting, and drink with each other after the fight. But thetotal wars of our country were far removed from Bismarckian oreighteenth-century pattern. No war in which mass national feelings aremobilized can be as limited as aristocratic wars,” Eric, Hobsawm, Age ofExtremes: The Short Twentieth Century, ( London: Abacus, 1995), 50-51.

“As warfare changed from formal engagements of small professionalarmies to the ruthlessness of mass armies, other changes followed. In1793 the Austrian army in the Netherlands had paid rent to Dutch farmersfor permission to camp in their fields. Later, the retreating Austriansfound themselves pushed against the Rhine River without sufficient moneyto pay for ferry service across the river; instead of seizing theferries, the Austrians awaited the French and surrendered,” Stephen Haus

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The deviation from immediate investigation yieldedimportant methodological finding which will work as thedeparting point in the further analysis of sovereignty:sovereignty as postulated self-evidently absolute humancondition contradicts to historical data it must be studiedas the concept with historically and theoreticallyrelativistic insight.

Up to here I have scrutinized sovereignty as suchdetaching from territory. However, the full-scale-elaboratedand William Maltby, Western Civilization: A Hisotry of Euroepan Society, 2nd edition,(n.d.: Wadsworth Publishing, 2004), 410.

In Thirty Years’ War, at the Battle of Nordlingen on August 3 of1645, the general of the Bavarians, Franz Freiherr von Mercy, fightingonce more against Enghien and Turenne was killed. On the spot where hefell, Enghien, his rival, erected a memorial with the inscription Staviator, heroem calcas [Stop, traveler, thou tread on a hero]. Certainly, suchhistorical examples cannot fit Carl Schmitt’s concept of “Political.”

To preclude the danger of the projection of the modern impressionson the past wars it is extremely informative above quoted Keen’sbrilliant book The Law of War in the Late Middle Ages. The work is abound inexamples of completely alien to us chivalric attitude to war, ally andenemy. I would quote only two from the numerous examples reflectingattitude toward the foe and “ally”:

“Jean [d’Angennes] had been one of the French captains inCherbourg, which town was surrendered to Humphrey of Gloucester, afterthe English had lain before it for several months, and when relief wasclearly not forthcoming. The story goes that it was Jean d’Angennes whonegotiated this surrender, and that the English gave him money for hispart in it. They also gave him a safe-conduct to travel back to the landof his own allegiance. He made his way to Rouen, and he was still therewhen that own too fell to the English. His safe-conduct was still valid,and, as far as is known, ha had not broken in by taking arms against theEnglish. As soon as it expired, however, he was put on trial by Henry V,‘because he had taken money for the surrender of Cherbourg when it wasstill well stuffed with supplies and artillery’. On these grounds he wasconvinced and executed as a traitor.

There is nothing remarkable about this charge. As we shall seelater, to surrender a town while it was still sullied and armed wasgenerally accounted a treason by law of arms. It is the judge, not thecharge, that surprises. For how could Henry V have had any right topunish a man fro treason, commited his own capital adversary, and bywhich he was the gainer? It would be certainly amazing today if anEnglish court claimed the right to try, say, a Russian citizen who wasguilty of betraying Soviet secrets to the British ,…” M. H. Keen, TheLaws of War in the Late Middle Ages, 47.

Another example unfolds quite opposite treatment of a foe due tohis loyalty to the military law and own promise:

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concept of sovereignty would infer territory as well sincethe legislative and political prerogative cannot belimitless in space unless in the case of a politicalauthority embracing the whole earth. In addition, the threadof any internal or external analogous power makesterritorial limitation, as protecting condition, andterritorial unity, as reinforcing condition, more vital.Certainly, the legislative and lawmaking prerogativetheoretically can be applied only to subjects and there is

“At the battle of Poitiers, d’Audrehem was taken prisoner by theBlack Prince, and when his ransom was fixed, he gave his promise to be aloyal prisoner, and not to arm himself against the Prince or King ofEngland until the ransom was paid, unless it were in the company of Kingof France or one of the princes of the Fleur de Lys. At Najera in 1367d”Audrehem was armed in the company of Henry of Trastamare and DuGuesclin against Black Prince, and in the rout of their forces fell oncemore a prisoner into English hands. The Prince, seeing that theMarshal’s ransom was still n fully paid, charged him with treason,because ‘he was false to his faith and perjured upon it, since he hadnot fulfilled what he promised on his honour in this matter’. TheMarshal asked leave to defend himself against the charge, and the Princeagreed that their case should be tried by a court of twelve knights,chosen from among his host. Since ‘this was a matter of knights and ofwar’, the Marshal, it was said, could speak freely before such a court,notwithstanding the Prince’s high estate.

The point here is clear. Since this was a matter arising out ofwar, the Prince and the Marshal were equally bound y the laws ofknighthood before a court of knights (though we must note that it wasthe Prince who empanelled the court; this was not the case ofarbitration, but a criminal trial). The arguments brought before thecourt were straightforward; the Marshal had broken his faith as aprisoner, given upon his honour as a knight, by arming himself in thecompany of Henry of Trastamare, who was not of the line of the Fleur deLys, and when his ransom was not yet fully paid. The Marshal did notdeny the Prince’s facts. He claimed, however, that he had nor armedhimself against the Prince as a public person, since the Prince was notthe ‘head of war’, but entered it as a captain and at the wages of Pedroof Castile. The Prince therefore had been present at the battle asEdward Plantagenet, a private person, and Marshal has armed himselfagainst this Edward’s master, Don Pedro, not against the Prince. Thus heclaimed to be free of the charge on his honour. The twelve knightsacquitted him on these grounds, and we are told that all, the Princeincluded, were rejoiced that such noble knight had thus escaped thesentence of death, which, if proved, his treason would have merited,” H.Keen, The Laws of War in the Late Middle Ages, 50-52.

In the light of the present research, what is crucial in theadduced examples, “it was the law, and not any man or any court, which

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not any indispensable need of spatial-territorial“protection” and “reinforcement.” However, as an additionalpreponderance, territorial limitation and unity wouldsupport and shield more efficiently absolute, undividable,unalienable and supreme status of the lawmaking andpolitical prerogative within the borders of certainterritory.

Such a public-political construction of territory, i.e.as the reinforcing and protecting condition of political andlegal status or public entity, appeared in Europe quitelate. Before, territory or rather land, had been regarded asan object of the private sphere. From the middle ages to thebeginning of the 17th century it steadily migrated into thepublic-political sphere and finally, at the beginning of the19th century, became the very political element of theconcept of the modern state.

was truly sovereign,” ibid., 50. Sometimes the treating of foe can reach funny absurdity:“In December 1562 two of the most powerful noblemen in France

participated in what seems to us a bizarre ritual. One of them was aprisoner of war. The other, his captor, had honored him with thecourtesy due a person of his rank. This courtesy extended to offeringhim the use of the only rich appointed bed in the château here he wasconfined. The honored prisoner declined the offer and insisted that hiscaptor use the bed instead. So the prince de Condé and the duc de Guise,who had so recently faced each other across a battlefield, foundthemselves side by side in bed,” Kristen B. Neuschel, Word of Honor:Interpreting Noble Culture in Sixteenth-Century France, (Ithaca: Cornell UniversityPress, 1989), ix.

In fact, Carl Schmitt himself admits this very difference betweenaristocratic and people’s war although in respect of partisanship:“There is no place in the classical martial law of the existing Europeaninternational law for the partisan, in the modern sense of the word. Heis either—as in the Ministerial War [Kabinettskrieg] of the eighteenthcentury—a sort of light, especially mobile, but regular troop; or herepresents an especially abhorrent criminal, who stands outside the lawand is, thus, hors la loi. So long as war retained a whiff of chivalry, ofdueling with pistols, it could hardly be otherwise. With the advent ofuniversal military service, however, all wars become people’s wars inprinciple, and soon situations arise that are difficult, even insolublefor classical martial law, like the more or less improvised levée en masse,or the so-called volunteer corps [Freikorps] and the sharpshooters[Franktireurs].” Carl Schmitt, The Theory of the Partisan: A Commentary/Remark on theConcept of the Political, Translated by A. C. Goodson, (East Lansing: MichiganState University Press, 2004), 5-6.

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This migration from private into public along with thedevelopment of sovereignty in more and more absolutisticmanner leaded to the elaboration of the territorialsovereignty.

These two almost imperceptible shifts entailedconsiderable consequences: besides “reinforcing” and“protecting” absolute, undividable, unalienable and supremestatus of sovereignty within the spatial-territorialdimension, the territorial sovereignty forged the concept of“natural territorial borders” which made possible toperceive nation as the community attached to the respective“national” territory either conquered by nomadic orinhabited from immemorial times by autochthonous as-if-nation.

If the suggestion is legitimate, it follows that“nation” is the concept with political-legal acumen implyingcertain territory and sovereignty35.

When I adduce “sovereignty” in the scholarly manner andattribute it to nation I do not mean that common members ofnation are able to understand the concept of sovereignty orany other notion scholarly, i.e. as sophisticatedlyelaborated theory or precisely formulated and consistentlyelaborated proposition. There is no precise construction of

35 Benedict Anderson mentions “political” and “sovereign” in hisdefinition of “nation”: “…definition of the nation: it is an imaginedpolitical community – and imagined as both inherently limited andsovereign,” Benedict Anderson, Imagined Communities, (London: Verso,1991), 6.

I would specify the proposition: neither sovereignty nor eventerritorial sovereignty is specific to nation. As we will see soon,territorial sovereignty has been invented as kingly or princelyprerogative. In contrary, the popular-territorial sovereignty asabsolute, unalienable and undividable general will of people as Rousseausuggested in his Social Contract, and being efficient within the certainterritory, is characteristic only to nation. However, I must remark,that Rousseau has not elaborated territorial sovereignty. Hisunderstanding of territory does not imply any political insight and ispurely Aristotelian.

Concerning “political” see also von Mises: “The concept of thenation is, as already said, a political concept. If we want to know itscontent, we must fix our eyes on the politics in which it plays a role,”Ludvig von Mises, Nation, State, and Economy, 37.

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sovereignty even in scholarship.36 Nor the construction ofpolitical-public territory is self-evident or satisfactorilyelaborated in law theory. But popular ideas and expressions,like “people’s will is inerrable,” “nation’s judgment isjust,” “country’s interests are supreme,” “nationalterritory,” “territorial or country’s unity,” etc, soundingin everyday-life politics as either propaganda of dictatorsor as the supreme political and even ethical principle ofthe liberal-democratic countries, are simplified anddistorted projections of their scholarly complicatedconcept-counterparts. Thus, discrepancies between scholarlyconstructed concepts and their distorted by the popularimagination counterparts are not significant if a certaincorrelation between scholarly and popularly imaginedconcepts is traceable.

Concluding the scrutiny, I would slightly amend theinitial postulate and put forward the integral proposition:nation is a community possessing territory and sovereignty,i.e. supreme, absolute, unalienable and undividableprerogative, in lawmaking and political affairs within thecertain territory.

However, the postulate would not be cogent unlessdemonstrating that firstly, the popular territorialsovereignty is the sufficient condition for nation andsecondly, that it is necessary and specific only to nation.To demonstrate the later statement is far easer and infra Iwill try to do that. To demonstrate that the popularterritorial sovereignty is the sufficient peculiarity, whichdoes not need any additional condition and which makesnation as such, is far more difficult. In order to succeedin the demonstration, there must be studied large range ofprimary historical sources, literature on theory of law andpolitical theory what is impossible within the scope of thecurrent article as well as my academic confidence. However,even though if the popular territorial sovereignty is notsufficient, but is only the feature which discerns nationfrom any other community or any other political unity aswell as is the minimally necessary condition, that is36 “Еще въ позднъйшей литературъ XIX въка и даже въ современной теорiиконструкцiя понятiя суверенитета остается неясной и запутанной,” ГеоргъЕллинекъ, Общее ученiе о государствъ, 345.

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already considerable scholarly discovery and, I think,deserving thorough investigation.

Since the very focus of the investigation is thedifference between nation and any other community orpolitical unity like tribe, the Greek polis, or Romancives/civitas, medieval principality or republic, empire, etc.,firstly, I must specify what I mean under “difference.”

Imaginary and Real Communities

Under “difference” I mean three matters: firstly, thestate of mind, i.e. how the members of a certain communityimagine or reflect themselves and the respective community,shortly, real or imaginary social identity, and secondly,real and perceptible outcomes of the imagination, shortly,how the imagination makes community act. In other words, anycommunity is not only the people of the same imagination:pure inspiration cannot create solid community. Nor anymechanical aggregate of “blind” and “spiritless” people,even with perceptible political effects, is as genuinecommunity.

If the assumption is right, I would slightly reviseBenedict Anderson’s view on nation as imaginary society.According to the scholar, nation “is imagined communitybecause the members of even the smallest nation will neverknow most of their fellow-members, meet them, or even hearof them, yet in mind of each lives the image of theircommunion.”37 This is true for nation. However it is truefor almost any community as well. The extension of theexpression “imagined community” is so wide that itmethodologically appears fruitless: it cannot help todistinguish, e.g. nation from tribe or empire: all membersof tribe, nation or empire hardly can know each other butthe image of nation, tribe or empire might still live intheir minds. Slightly infra the scholar admits the laxity ofhis definition: “in fact all communities larger thanprimordial village of face-to-face contact (and perhaps eventhese) are imagined.”38 Further, he adds very importantreservation: “Communities are to be distinguished…by the37 Benedict Anderson, Imagined Communities, 6.38 Ibid.

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style in which they are imagined.”39 The reservation is avery important methodological condition, which is close tomy first proposition: the differences among variouscommunities are rooted in the different mental state andimagination.

However, that is not all. I would add two morecorrections to what ‘’imagined” could mean. “Imagined” canbe of two kinds: it is not the same when certain imaginedfiction leads to real political consequences or certainmental state reflects real affairs, and when the imaginedremains within the mental dimension as a fantasy not leadingor reflecting real state of affairs. E.g. the project ofGroßdeutschland, unified Germany under the crown ofHapsburgs and Austria, remained purely imaginary since ithas never been fulfilled (excluding short-term Anschluss),however when the project of Kleindeutschland, unifiedGermany led by Hohenzollern of Prussia without Austria, wasfulfilled in 1871, the project was not any more imaginarybut reflected (or leaded to) the real state of affairs.Finally, in some cases, real state might precede theimaginary state as in the case of Italy, or Georgia: theBolshevik revolution, military thread from Turkey and thefear of the loss of territories, but not any project ofnation or nation state or even vague expectations orwillingness, forced Georgia to independence in 1918.40

Concluding, I would suggest for the methodologicalpurposes that while studding any real community, one mustnot concern purely imagined, desired, or expected butinstead only those ones, which reflect or lead to real stateof affairs. Sometimes these two dimensions ofmental/imagined and real might coincide, sometimes mightdiverge but, at least certain distinguishable correlation

39 Ibid.40 At the truce conference in Batumi on May 11 of 1818, therepresentatives of Turkey claimed for more Georgian territories thanconceded by the Brest treaty. The mediator of the negotiations, theGerman general Otto von Lossoff, being also the protector of theGeorgian interests, suggested the Georgian delegation to declareindependence in order to enable the Reich to defend Georgia from theTurkish intervention. Only the Turkish military threat and von Lossoff’spressure forced the formation of the National Council of Georgia anddeclaration of “the Act of Independence of Georgia” on May 26 of 1918.

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must be between them in order not to remain in the realm ofpure fiction. Certainly, the imagined but unaccomplishedprojects also are worth of scholarly studies but not inconnection with the real communities.

Eventually there is more fundamental condition whichmakes different difference imaginary from real essentially:in the case of the imaginary society the political unity andrelations between their members derive from fiction andimagination of the members; e.g. in order to maintain orcreate the unity of any fictional society there is no needto make the members know each other; rather opposite istrue: the unity emerges and works thanks to certain fiction.However in the case of a real unity, e.g. that of a tribe,or a Greek polis, even though there might be a fiction ofconsanguinity, or certain common religious cult, thefictional concepts are not sufficient and even essential formaintaining the unity: as soon as real connections among themembers and their immediate knowing became feeble themaintenance of the unity became unfeasible and even thefiction fades or remains as a pale symbolic relict withoutany social or political content.41 The Greek colonies arethe good example of such disrupt although the members of thecolonies bore in mind the consanguinity and shared thecommon religious cult with the citizens of metropoly. Togive such a weight to imagination and fictional ties seemsunsafe projection of the modern affairs to past. Thus I willspecify and correct the first statement: the very differencebetween imaginary and real society lays not insofar what andhow their members imagine though the both societies havetheir own and even peculiar fictions, but in thesignificance of fiction on the one hand and realinterpersonal relations on the other one; fiction makesfictional society while immediate interpersonal relationsmake real society. In its turn, the real interpersonal tiesmight be horizontal as in the case of rural population orvertical as in the case of feudal or imperial relations.

Applying the outcomes of the scrutiny, I would add tothe proposition two more important details: firstly, nation41 The citizens of any Greek polis, despite small number of the community,still artificially maintain the real relations through dramaticliturgies and public feasts.

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is an imaginary society or unity (i.e. real interpersonalties do not contribute in the maintenance of the union) andsecondly, the people imagine themselves as the communitypossessing the supreme political and law-making prerogativewithin strictly determined borders42 and act (or strives to act)accordingly. Further, I must demonstrate that none of thesocial communities or political unities possesses orimagines that possesses the prerogative.43

Tribe, Empire and Nation

Usually, nation is viewed as either tribal synoikism,integration of tribes, or as natural transformation of atribe into a “respective” nation through expansion. Suchattitude apparently or latently has been presented in theviews on nation since the early up to the modern times. E.g.Ernst Renan stated that the French nation has been formed asamalgamation of the various, mostly Germanic tribes who hasforgotten their past and thus, created a solid nationalcommunity44.

I think that the distinction between tribe and nationis rooted within the nature of social ties. Even though ifthe people remained the same in a tribe and respectivenation, the natures of these two communities would be stilldifferent, because the principles of social cohesion aredifferent.45 Nevertheless, I have demonstrated supra thatthere is neither any constant disposition, which could becommon to nation and its preceding tribe or community, nor42 Briefly, popular-territorial sovereignty.43 To demonstrate that the societies like tribe, Greek polis, feudalprincipality, Roman Empire or “Christendom” are exclusively realunities, seems complicated and even controversial. Thus I postpone theproblem for further research. 44 “Or l'essence d'une nation est que tous les individus aient beaucoupde choses en commun, et aussi que tous aient oublié bien des choses.Aucun citoyen français ne sait s'il est burgonde, alain, taïfale,visigoth… L'oubli, et je dirai même l'erreur historique, sont un facteuressentiel de la création d'une nation, et c'est ainsi que le progrès desétudes historiques est souvent pour la nationalité un danger,” ErnestRenan, Qu'est-ce qu'une nation?: Conférence faite en Sorbonne, le 11 mars 1882, chapitre1.45 “Если даже нацiя по исключенiю сохранила чистую кровь, то и въ этомслучаъ связующимъ звеномъ ея служитъ не эта общность крови...” ГеоргъЕллинекъ, Общее ученiе о государствъ, 85.

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any very trait that always would distinguish one nation fromthe other communities. Moreover, nation comes into beingthanks to loss of some old traits and acquisition of newones.

Nor confusion of nation with “empire” is rare,particularly whenever speaking about “imperial” or“imperialistic nations.” Certainly, historically,traditional empires could be transformed into territorial-absolutistic monarchies, as soon as imperium, the supremeand absolute executive power, has been replaced by princely-territorial sovereignty. Shortly, there is a fundamentaltypological divergence between, e.g. the Empire of Austria(after 1867 Austro-Hungarian Empire) emerging after theBattle of Austerlitz in 1806 or even earlier at the end ofthe 18th century, and its predecessor - Sacrum RomanumImperium, even though if the both have been titled as“empire” and almost always have been ruled by the samedynastic house46.

Tribe

According to the social history, the most primitivesociety is a tribe, which is the unity of consanguinity.47

The members of a tribe conceive consanguinity as the onlyand real condition of their unity48. The members of a tribeimagine themselves as the descendents from one progenitor49.The progenitor might be either real or mythical; theconsanguinity also might be either real or imaginary, i.e.acquired through adoption, but that does not make anysubstantial change in the belief, and consequently, real

46 Habsburgs possessed the imperial throne from 1273 to 1740 almost unceasingly, and from 1745 to 1806 without any interruption.47 “...Первым связущимъ началомъ, благодаря которому люди начинаютъ житьобщинами, является единокровiе или родство,” Генри Сёмнер Мэн,Древнейшая история учреждений, 53.48 “Наши дикiе предки не признавали никакого братства, за исключенiемдъйствительнаго единокровiя, которое разсматривалось ими, какъсушествующий фактъ,” ibid., 54.49 “…всъ люди одного племени происходятъ отъ какого нибудъ общагородоначальника...,” Генри Сёмнер Мэн, Древнейшая история учреждений, 55.

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social ties. Consanguinity and the common progenitor are thenecessary and sufficient condition for a tribal community.

Public-Political Unity: imperium

Firstly, I must avoid ambiguity associated with strictetymological construction of “political.” “Political” asderivative from the Greek “polis,” rather implies tribe aswell as consanguinity50. I would discard its authenticetymological meaning and under “political” wouldprovisionally imply power status or authority. Certainly,any tribe might be subordinated to its genuine authority andeven act politically, but within the paradigm of tribe, itis not essential. Nor political power in tribe is anindependent principle: it derives from progenitor as well asresides within or is applied only to the members of thetribe. I would call such a political power as “tribal-political,” i.e. derivative from and restricted by tribe.However, power status might be impersonal and independentfrom any other condition principal. I would call such powerstatus as public-political.

For the deeper understanding what “public” means, Iwould refer to the Roman law system and, particularly to thedistinction between ius publicum and ius privatum; accordingly,“public” roughly means applicable to all citizens orcommunity disregarding any other condition than citizenshipor magistrates while “private” pertains to an individualperson, family, services, property and hereditary affairs. Iwould defer clarification of “public” and its differencefrom “private” until entering Hannah Arendt’s Vita Activa’sscrutiny. Yet I would accentuate what “public” in additionto private does not mean: it does not imply territory.Consequently, “public-political” refers to the community,magistrates or all subjects, and it does not imply anyterritorial connotation.

According to the Roman public law, public authoritymight be of various types like imperium, potestas, maiestas, or

50 “…кстати, призводное от греческого слова pólis – вполне согласуется спонятием племени в целом и представлением о родстве в частности,”Грегорий Надь, Греческая мифология и поэтика, Перевод с английского Н.П.Гринцер, (Москва: Пргресс-Традиция, 2002), 358.

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auctoritas. Unlike the modern understanding of “public,” allof them refer only to people and never to territory. Perhapsthe most puzzling seems imperium, i.e. “empire” in themodern terminology, which is a territorial-political conceptin now-days. However, according to the Roman public law,imperium is the supreme and absolute executive power, whichis possessed either by rex [king], or, in the republicantimes, by major magistrates. Unlike sovereignty, imperiumdid not imply either unrestricted in time or within acertain territory political power or lawmaking function.Finally, it was applicable only to the subjects but by nomeans to territory. That is true that Rome’s territory wasframed by the sacral walls - pomerium51, which used todetermine the type of imperium – imperium domi, i.e. imperiumwithin the walls of Rome with certain restrictions, andimperium extra pomerium, i.e. imperium outside of walls withoutrestrictions. Notwithstanding the sacral walls of Rome onlyused to limit imperium, but as a public-law concept, imperiumwas not either applicable to or derivative from territory.In a certain sense, imperium is a “negative,” as aphotographic metaphor, phenomenon to territorialsovereignty: if territorial sovereignty is valid within acertain territory, imerpium at its full scale enters inforce only out of a certain territory, i.e. out of sacralwalls of Rome, when within the sacral walls of Rome imperiumdomi has restricted, temporal and provisional force. Itseems that territory in the normal circumstances has certain“immunity” and “deflects” a public authority. Octavius as wellwhen was granted by the title of maius imperium proconsulare forcontrolling the provinces, he could aim his imperium at allarmed forces, namely other minor magistrates, and provinciallegions52 but not the territory of provinces in the modernsense of the territorial-administrative control. Octavius, asthe first “emperor” in the modern sense and as the founderof the Roman “empire” also in the modern sense, ismisunderstanding caused by the modern intensions of “empire”and “emperor.” Nominally, Octavius remained princeps, i.e. thefirst citizen of the republic and the first member of51 Pomerium – post murum, outside of wall, the perimeter of Rome.52 Harold Nicolson, Monarchy, (Bergamo: Istituto d’Arti Grafiche, 1962), 69.

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senate. He did not think on any “territorial” empire either.Instead, he was proud of restoring the traditionalrepublican order after the civil war.53

Not only in precise legal language of ius publicum butalso in the popular mind and poetic language, the term meantlordship, governance or reign of people: “tu regere imperiopopulos, Romane…”54 as says Virgil.

Essentially, the mediaeval construction of imperiumdoes not differ from its antique counterpart. Theoretically,the Roman Emperor is the lord for all other secular kings orprinces55 through his imperium. His power was appliedexclusively to the princes personally as his subjects, butnot to their domains, which were regarded as privatepossessions of the princes56. The kings, princes or lesservassals imitate the same “imperial” relation within theirdomains. “Regnum,” or derivative “reign” as well asGermanic “Reich” initially meant kingly or princely

53 “Guglielmo Ferrero, the brilliant and highly imaginative historian ofthe fall of the Roman Republic, disliked Octavian. He tells us that theyouth’s beauty was marred by his short stature, by his ugly heir, and byhis bad teeth. In fact he denounces him as ‘an arrant rogue’, compitobricone. Yet even Ferrero admits that Octavian was perfectly sincere inhis claim to have restored the Republic. He had no desire to impose anautocracy and it was merely the force of circumstances that rendered himunable to relax central, and therefore autocratic, control,” ibid., 66.54 “The Roman, you must reign peoples by imperium,” Vergili Aeneidos, VI.851. The excerpt “di, quibus imperium est pelagi,” Vergili Aeneidos, V.235; the line might be translated as “Gods, who possess empire of sea.”However the commentator Maurus Servius Honoratus clarifies that imperiummeans ruling, command over sea: imperium est pelagi id est in pelago, utdi quibus imperium est animarum, [command is of sea, i.e. over sea, asgods have command of souls], Maurus Servius Honoratus, in vergilii aeneidoscommentarium. 55 “Imperatorem qui diceret non esse dominum et monarchum totius orbisesset forte hereticus” [who would say that that emperor is not lord andmonarch of the whole world would appear to be a heretic], Bartolus, ad.L. 24 D. de capt. Et postlim. 49, 15, N. 7.56 Although after each year and a day Emperor again must render asinvestiture the fiefs to his vassals (in the case of the German princes)but that did not change the private nature of possession.

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lordship57 and, like imperium, referred only to people butnot to territory.

This specific dominance over the subjects but notterritory has been reflected in the official titles of theEuropean kings as well, e.g. “rex anglorum” (king of theEnglishmen), “rex francorum” (king of the Frenchmen). Thefirst English king who shaped his official title asdominance over territory [rex angliae] was King John (1167-1216)58. Among the French kings, although since the dynastyof Capétiens (987) the title “King of France” [rex franciae]appeared, “King of Frenchmen” [rex francorum] was still usedwidely. Only Henry IV abandoned the title since it wasinconvenient to put on the one side of a coin “King of theFrenchmen” and on the other side his another title, “King ofNavarre” what was Bourbons’ purely feudal domain, i.e.private possession59.

I also would strengthen the conjecture by the case ofGeorgia. The precise title of the Kings of the mediaeval, asthe modern Georgian historiography uncritically refers, socalled “united Georgia,” in fact was “King of Abkhazians,Karthlelians, Kakhethians and Ranians,” i.e. certain “sub-ethnicities.” Concerning toponym “Georgia” or appearance ofany toponymic element in the official titles of the GeorgianKings, I cannot contend anything confidently. To the best ofmy knowledge, the Georgian historiography has not studiedthe issue yet.

Polis, Republic and State

57 ”Нъмецкое «Reich», соотвътствующее латинскому regnum, и производнымregno, regne, reign, означает первоначально господство и именнокняжеское. То же относится къ происшедгимъ отъ латинского «imperium»выраженiямь imperio, empire. Общаго термина, который обнималъ бы какъмонархiи, такъ и республики, не существует,” Георгъ Еллинекъ, Общееученiе о государствъ, 94.58 “Изъ английскихъ королей, Джонъ, первый сталъ называть себя королемъАнглии,” Генри Сёмнер Мэн, Древнейшая история учреждений, 61.59 “Титулъ короля Францiи вошелъ въ употребленiи вслъд за вступленiем напрестолъ динстiи Капетинговъ, но тъмъ не менъе мы достовърно знаемъ, чтодаже во время Варфоломеевской ночи короли Только Генрихъ IV оставилъ этоназванiе, так как его неудобно было ставить на монетахъ рядомъ съдругимъ его титуломъ – короля Наварры, составляюшей чисто феодальное итерриторiальное владънiе Бурбоновъ,” ibid., 61.

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Besides empire and kingdom, any republican form ofstate, since antiquity until the middle ages or even themodern times, did not imply territorial connotation either.The ancient Greek πόλις or Latin cives or civitas, as well as respublica–people’s affairs, are only civil communities, i.e.association of citizens60. Aristotle underlines that a state[hē polis] is not a communion of place [koinōnia topou](although, according to him, territory is indispensable) buta communion of families [tais oikiais] and clans [tois genesi]61.When Greeks spoke about any state with large territory, e.g.Persia, they refer to inhabitants in the plural, i.e. Πέρσαi[Persians].62 Whenever “Urbs,” “Roma,” or “Hellas” wasmentioned, it implied only territory but not state63,exactly as later in the 19th century Klemens Wenzel vonMetternich would argue that the word “Italy” was purely ageographic expression but not a political notion.

The term “state,” derivative from Latin “status,” inalmost all European languages (lo stato, l’etat, der Staat]until the 16th could mean almost any concept from ministryto a social standing (état) except state.64

I would also adduce the case of Russia or rather “Rus”(“Русь“). The term “Rus“ today is comprehended primarily asa toponym (or as the unity of the nation and territory). Butinitially, in the north-west lands of Novgorod, where theterm appeared firstly, it did not imply any territorialelement; the term has designated the cohort of knights orrather militia, and only later (not earlier than 911) it hasbeen transformed from ethnonym into choronym.65

60 Георгъ Еллинекъ, Общее ученiе о государствъ, 93; “…государство, повоззрънiю его членовъ, тождественно съ совокупностью гражданъ, оно естьcivitas, т.е. гражданская община, или res publica – дъло народа,народная община,” ibid., 229.61 Arist., Polit., 1280b 29-35; See also: “He gar polis politōn ti plēthos estin [polis is association ofcitizens],” ibid., 1275 a 1. 62 “Когда говорятъ о государствахъ съ обширной территорiей, ихъобозначаютъ какъ совокупность обитателей,” Георгъ Еллинекъ, Общее ученiе огосударствъ, 93.63 Although, sometimes “urbs” can refer only to the community ofinhabitants instead of territory, e.g.: “…gabios, propinquam urbem…,” TitusLivius, ab urbe condita, I 53, 4.64 Георгъ Еллинекъ, Общее ученiе о государствъ, 95.

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This concise historical account leads to the quite safeconclusion that unlike the modern understanding, publicauthority has not implied any territorial connotation, or ifimplied, it did not entail any public-politicalconsequences66.

Political philosophy or law theory has not mentionedterritory as an element in any ancient definition ofstate.67 Presumably, firstly Johann Ludwig Klüber in hisÖffentlichen Rechte des Deutschen Bundes und der Bundesstaaten publishedin 1817 defined state as civil society with the determinedterritorial district.68

65 “В Новгородской земле этот термин использовался поначалу в значениивойска, дружины, рати, т.е. того рыцарского слоя, защитника земли, о ко-тором уже шла речь. Не зря в «Повести временных лет» читаем о дружинекнязя: «И беша у него варязи и словене и прочи, прозвашася русью». To же увизантийского писателя Константина Багрянородного: «Князья отправилисьосенью на полюдье со всею русью». И только затем из этнонима этот терминпревратился в хороним -название территории, государства (с 911 г.,договора Олега с Византией),” Л. П. Белковец и В. Белковец, Историягосударства и права России, (Новосибирск: Новосибирское книжноеиздательство, 2000), 11.

Not being a specialist of Slavic Studies I cannot contend anythingcategorically; however I would suspect that the notion “Rus” with itsmodern impressive religious-poetic connotation inspiring patrioticsentiments, could be coined earlier than the 17th century: “СогласноЧернявскому, земля становится "святой" только тогда, когда получаетвозможность претендовать на исключительную роль в деле всеобщегоспасения, т. е. в случае с Россией – не ранее середины XV века, когдапопытки воссоединения церквей и положившее конец Римской империи падениеКонстантинополя сделали Россию единственной в мире православной страной,а Москву - Третьим Римом, иначе говоря, единственным источником спасениядля человечества. Так, по крайней мере, должны были думать цари. И всеже данное замечание Чернявского, строго говоря, не вполне уместно,поскольку выражение "Святая Русь" вошло в широкое употребление не раньше"смутного времени" (начало XVII века), когда ни царя, ни государства вРоссии фактически не было,” Эрик Хобсбаум, Нации и национализм после 1780 г,http :// www . bookssite . ru / scr / read _130537_0. html .66 Except very rare cases, e.g. the French Kings and German Principalities after Thirty Years’ War.67 “Ни одно изъ определенiй государства, заимсьвованныз отъ древнихъ, неупоминаетъ о государственной территорiи,” Георгъ Еллинекъ, Общее ученiе огосударствъ, 287.68 “Насколько мнъ извъстно, впервые Klüber опредълилъ государство, какъгражданское общество «съ опредъленнымъ территорiальнымъ округомъ»,”ibid., 287.

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Greek Polis: Tribal and Public-Political

In early communities the both, tribal and public-political principles might present. Perhaps one of the mostvivid examples of mingled-principle communities is the Greekpolis or early Rome. On the one hand, Greek polis is acommunity of the citizens who regard themselves asrelatives69 and who are organized into tribes [phylia], and onthe other hand the same citizens are bound by political tiesand have public-political bodies. The same twofold naturecharacterizes early Rome: its citizens consist of threetribes [tribus], Ramnes – Latins, Tities – Sabinians and Luceres– Etruscians. According to scholars, the tribus refers topre-state communities70. Besides these tribal ties, the samecitizens are subordinated to, as well as participate inmagistrates and committees, which do not have any seemingderivation or connection with the tribal cult of ancestors(manes or penates).

Presumably, Aristotle also implies this two-fold natureof the Greek polis when he suggests that political (i.e. polis)community [hē politikē koinia] must not be too large inorder to make possible direct and immediate politicalinteraction among citizens through knowing face-to-face.71

Aristotle combines immediate and direct knowing face-to-face, which is characteristic (yet not necessarily) totribe, with impersonal and formal public interaction. In myview, this synthesis of tribal and public-political was themain consideration for Aristotle (Demosthenes as well) to beso stubbornly against unification of the Greeks under the69 “Единственная цъль древней демократiи сосотояла въ томъ, чтобысчитаться въ родственой связи съ аристократiею...,” Генри Сёмнер Мэн,Древнейшая история учреждений, 62.70 В. М. Хвостовъ, Исторiя римскаго права. Москва: Московское научное издание, 1919. 21.71 “…the lowest limit for the existence of a state is when it consistsof a population that riches a minimum number that is self-sufficient forthe purpose of living the good life after the manner of a politicalcommunity [hē politikē koinia],” Arist., Pol., 1326 b 7-9.“…in order to decide questions of justice and in order to distribute theoffices according to merit it is necessary for the citizens to know eachother’s personal characters, since where this does not happen to be thecase the business of electing officials and trying law-suits is bound tobe badly,” Arist., Pol., 1326 b 14-17.

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kingship of Philip IV or Alexander the Great: in a hugestate knowing face-to-face was impossible and, consequently,authentically political interaction.

Besides these two aspects of the Greek polis, tribal andpublic-political, there is the third dimension that isprivate, which is neither tribal nor public-political.Private sphere is associated with family, property,services, procreation and household72. According to Hegel’sbrilliant analysis of Sophocles’ Antigone exposed in hisAesthetics, the conflict between celestial gods of polis andgods of terrain who are protectors of family, is the core ofthe tragedy. Although I would disagree with theinterpretation of the tragic effect in Antigone, yet I wouldcompletely agree with the opinion on the sharp distinctionbetween these two spheres – family-private and public-political73.

The controversy private-public is one of the verytopics of Hannah Arendt’s brilliant Vita Activa74. I would applyHannah Arendt’s theory as the methodological frame and tryto demonstrate that nation merges this sharp distinctionbetween public-political and private what, in its turn,makes possible the concepts of political territory.

Controversy

72 The distinction between tribal and private is apparent in Aristotle’snomenclature as well: families [oikiai] and clans [genē].73 Unfortunately the relation public-tribal, and tribal-private havenote been studied yet. The superficial review suggests that tribal musthave been in harmony with both private as well as public playingmediating role between public and private. However, on the other hand,historically, it is well-known, that relation tribal-public was not sosmooth; any reform in Athens on Rome used to weaken the tribal ties bynewly introduced financial or territorial organization of the citizenswhat was quite painful for the society. 74 “According to Greek thought, the human capacity for politicalorganization is not only different from but stands in direct oppositionto that natural association whose center is the home (oikiri) and thefamily. The rise of the city-state meant that man received "besides hisprivate life a sort of second life, his bios politikos. Now every citizenbelongs to two orders of existence; and there is a sharp distinction inhis life between what is his own (idion) and what is communal (koinon),”Hannah Arendt, The human condition, (Chicago : University of ChicagoPress, 1958), 24.

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As an objection, one may adduce very ancient survivedliterary sources on the Israelites and Hellenes. According tothe Torah, the Land of Israel was promised to the Jews (Iwould prefer the term “Israelites”) as their homeland. TheLand has been viewed as sacral and the first Israel andJudah Kingdoms were established over there. It might seemthat Land of Israel were the source for the ethnonym forIsraelites. However that is not right. In fact, the order isreverse: the term “Israel” firstly was an eponym. InitiallyJacob was renamed as "Israel" after he wrestled with God75

and only afterwards, the eponym became a toponym. “Hellas” is also derivative from “Hellenes” which in its

turn was formed from “Hellen” - the mythological patriarch ofall Hellenes.

Further Controversy

Athenians’ autochthony76 and other examples of land orterritorial vocabulary77 might also raise criticism: toponym“Hellas,” link between “Hellenes” and “land,” “place,” or

75 Genesis, 32:28.76 Autochton, (Ancient Greek) - sprung from the land itself. Theautochthony of the Athenians was a favorite issue of Athenian oratorsand poets: “For we assert that we are sprung from our very soil and thatour city was founded before all others,” Isocrates, On the Peace, [49];“for we did not become dwellers in this land by driving others out ofit, nor by finding it uninhabited, nor by coming together here a motleyhorde composed of many races; but we are of a lineage so noble and sopure that throughout our history we have continued in possession of thevery land which gave us birth, since we are sprung from its very soil,”Isocrates, Panegyricus, [24]; “It is said that the famous Athenians arenatives of the land, not a foreign race,” Euripides, Ion, [589-590]. 77 “…conquests all the territory [chôran] which we Hellenes possess,”Isocrates, Panegyricus, [36], “…for she established the Piraeus as amarket in the center of Hellas [en mesôi tês Hellados],” Isocrates,Panegyricus, [41]; “…while the Hellenes were confined within a narrowspace [topon] and, because of the scarcity of the earth [tês gês],”Isocrates, Panegyricus, [34]; “…yet they considered Hellas [Hellada] to betheir common fatherland [patrida],” Isocrates, Panegyricus, [81]; “…notonly would you and Athens be grateful to me for what I had said but allHellas as well,” Isocrates, To Philip, [24]; “…it is evident that Hellashad in ancient times no settled population,” Thucydides, The PeloponnesianWar, book 1, 2, II.

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“earth” refers to the connection between people andfatherland.

It is also hardly deniable that fatherland had veryintimate and spiritual acumen for the Greeks. The wholeOdyssey is about return to Ithaca. Return to homeland [honostos] for the Greeks had not only strict-topological andpatriotic but also figurative-ethical, juridical and cosmicmeaning, i.e. restoration of the primordial and naturalorder, what unfolds the deep emotional and metaphoricalattachment to land. Virgil’s Aeneas’ and survived Trojans’wondering for the promised fatherland distantly remindsMoses’ and the Jews’ Biblical stories on wandering for thePromised Land.

However all these examples prove rather opposite,namely, that territory and land has not had any publicconnotation and remained within private-intimate domain. Iwould give credit to Arendt’s theory concerning the sharpdistinction between private-public laid between the realm ofpolitical and household in the ancient times78; land, so farbeing associated with procreation or life would be ratherassociated with private than public. For the modern thought,expressions like “born from the land,” “dweller in thisland,” “inhabited territory,” etc. undoubtedly have publicacumen; however, the same expressions with the intimacy andemotions alluding to family, procreation and life-maintenance would self-evidently pertain to private spherefor the ancients79.

Private and Public

Besides Hannah Arendt’s paradigm, there is quiterational consideration why land or territory could not78 “The distinction between a private and a public sphere of lifecorresponds to the household and the political realms, which haveexisted as distinct, separate entities at least since the rise of theancient city-state,” Hannah Arendt, The Human Condition, 28.79 “Division between the public and private realms, between the sphereof the polis and the sphere of household and family, and, finally,between activities related to a common world and those related to themaintenance of life, a division upon which all ancient political thoughtrested as self-evident and axiomatic,” Hannah Arendt, The Human Condition,28.

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acquire public dimension. Land could be an object of iusprivatum; it can be a property, sold or purchased, rented,passed as heredity or dos, mortgaged, shortly, treated byius privatum, but it cannot be subordinated to ius publicum:territory cannot be neither persuaded, what is the featureof the public life of liberal-democratic political order,nor subordinated to any command, what is characteristic to adespotic political regime80.

Not uninteresting to remark that the relation ofpolitical power to territory, i.e. how political authority“governs” territory, has not been solved in the theory oflaw yet. According to some theorists, territory is a certainpublic property81: it is subordinated to the publicauthority as if it were certain possession by “public”dominio82. However that is theoretically inconsistent (atleast, within the paradigm of distinction public-private).Georg Jellinek objects that governance over territory can beonly public-legal, i.e. imperium but not dominium; dominium,in contrary to imperium, is only private possession of athing83. He suggests that territory is only the spatialcondition, which makes possible application of the publicpower to all persons being within the borders of theterritory; public authority must be implemented within theborders of the territory, and its commands are applicable tosubjects and foreigners within the borders of the territory;however the impression that the territory itself is

80 “To be political, to live in a polis, meant that everything was decidedthrough words and persuasion and not through force and violence. InGreek self-understanding, to force people by violence, to command ratherthan persuade, were pre-political ways to deal with peoplecharacteristic of life outside the polls, of home and family life, wherethe household head ruled with uncontested, despotic powers, or of lifein the barbarian empires of Asia, whose despotism was frequently likenedto the organization of the household,” ibid., 27.81 “…будто сама территорiя подчинена непосредственному господствугосударства и будто существуетъ, такимъ образомъ, государственное вещноеправо,” Георгъ Еллинекъ, Общее ученiе о государствъ, 28982 “rex imperio possidet, singuli dominio,”[king dominates by imperium, a privateperson – by dominium], Seneca, De Beneficiis, lib. VII, c. V. 43. This isthe common place in the law theory: imperium is a public-law notionwhile dominium – private-law. 83 “…господство надъ территорiей есть господство публичноправовое, это –не dominium, а imperium,” Георгъ Еллинекъ, Общее ученiе о государствъ, 290.

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subordinated to state authority is wrong.84 In my turn, Iwould criticize Jellinike’s construction. As we have seensupra, imperium domi also was applicable within certainterritory - only within the pomerium, i.e. the borders ofRome, and imperium extra pomerium was not applicable within thesacral walls. But that did not mean possession, dominationor governance of any territory in the modern sense; it meantonly commanding over people yet within the borders ofcertain territory (or out of the certain borders) exactly asJellinek suggested. Jellinek’s concept of the governing ofpeople within certain territory is essentially the sameimperium. Jellinek’s construction of the governance ofterritory does not make any difference between imperium andthe modern understanding of the political territory. In myview, the very inaccuracy is that Jellinek strivesdescribing the modern phenomenon of the political territory,which is neither public nor private, by the terminologicalapparatus of the Roman law system with its sharp distinctionbetween private and public: it seems that the new concept ofterritorial-political authority is incompatible withtraditional categories of the Roman law and its strictdivision in public and private areas appears inappropriate.

Domination of Private Law Principles in the Public law

Supra I spoke about one aspect of the shift in law. AsI have already mentioned, law till the 13 the century hadbeen regarded as autonomous, i.e. as independent andimpartial system of justice either granted by God, orelaborated by prudentes, iurisconsulti, law Departments ofmedieval universities or coined by forensic practice, ortransmitted by tradition from immemorial times. Today, weunderstand law as consistent articulation of the onlysovereign’s, i.e. people’s will, expressed through general

84 “Территорiя служитъ пространственнымъ основанiемъ для осуществленiягосударства надъ всъми пребывающими въ государствъ людьми-подданными ииностранцами. Велънiя государства должны осуществляться въ пределахъ еготерриторiи... Но съ этимъ неръдко связывается ложное представленiе,будто сама территорiя подчинена непосредственному господствугосударства...,” ibid., 290.

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provisions. Such a meaning of law has nothing common withimpartial justice and the notion of the autonomous law.

Besides, the steady increase of the significance of thewill of sovereign since the middle ages has merged privateand public spheres of law. The scholars mention that afterthe 18th century the public law has been closely associatedwith the traditional private law by all parameters85. Iwould hypothesize that the mentioned shift, at leastpartially, also was caused or supported by the tendency ofsubordinating of public law to the principles of the privatelaw. Full elaboration of the concept of sovereignty meantacknowledgement of will as the constructing principle ofpublic law. However will was the principle of the Romanprivate law, particularly - the contract law (ius contractum);ius publicum, in contrary, had not been constructed on theprinciple of anybodies or any authority’s will beforeinventing sovereignty86.

The domination of this principle of will of the privatelaw in the public sphere is apparent in the age of thepopularity of the doctrine of the social contract, in the17-18th centuries. The notion “social” suggested by HannahArendt, i.e. which according to her interpretation is noteither private or public, strikingly accurately fits thisvery private nature of the social and political theories ofthe 17-18th centuries which view civil society as created byimplied agreements among private persons as if private dealamong many contrahentes.87

85 “…после XVIII века сложилось здание публичного права, которое повсем параметрам близко к традиционному частному праву,” Рене Давид,Основные правовые системы современности, 29. 86 Although the both, Roman public law as well as Germanic lawconsidered people as one of the participants in lawmaking as well as inelecting of officials (i.e. formation of authority), however that by nomeans implied the will of people as the supreme principle in politicalor lawmaking matters. It was only an old principle nihil sine nobis [nothingwithout us], i.e. the consent of the subjects, but that did not mean thesupreme political and legislative prerogative. Moreover, even in theRoman private law only at 50 A.D. will appeared as the essentialcondition for the contract law: “За 50 лет до н. э. оно [novainterpretatio iuris] выдвинуло значение воли, как существеннейщегоэлемента юридических сделок, Римское частное право, (Москва: Юридическреиздательсвто, 1945), 23.

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Further Hannah Arendt develops the idea of “social,”suggesting very important point: the modern concept ofsocial founds its political form in the nation-state.88

Although the suggestion deems rather intuitive thantheoretically supported, yet I think, the intuition isright.

But that is not all. Something is missing. Arendt’sproposition, “the social realm… found its political form inthe nation-state,” cannot be explained only by politicalterritory. Besides territory, nation (and particularlynation-state) needs sovereignty, i.e. supreme prerogative inthe political, military and law-making matters.

Territorial Sovereignty

Unfortunately, due to restricted opportunity and notbeing ready to provide exhaustive and integral hypothesis onsovereignty at this phase, I would only scrutinize onehistorical circumstance, which most probably has stimulatedconstruction of the political territory, i.e. the concept ofterritorial sovereignty.

Georg Jellinek suggests that sovereignty has beenforged since the middle ages by collision of three political

87 There must be deeper attachment between nationalism and liberalismthan it has been thought: Benjamin Constant has already in 1816 alludedthe shift from public to private in the values while comparing theliberties of ancients and moderns:“It follows that we must be far more attached than the ancients to ourindividual independence. For the ancients when they sacrificed thatindependence to their political rights, sacrificed less to obtain more;while in making the same sacrifice, we would give more to obtain less.The aim of the ancients was the sharing of social power among thecitizens of the same fatherland: this is what they called liberty. Theaim of the moderns is the enjoyment of security in private pleasures;and they call liberty the guarantees accorded by institutions to thesepleasures,” Benjamin Constant, The Liberty of Ancients Compared with that ofModerns, 1816.88 “…the emergence of the social realm, which is neither private norpublic, strictly speaking, is a relatively new phenomenon whose origincoincided with the emergence of the modern age and which found itspolitical form in the nation-state,” Hannah Arendt, The Human Condition,28.

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powers (Church, Roman Emperor, and local princes/corporations).89

Although that might be true at some extent forsovereignty, notwithstanding the collision among these threeforces does not clarify how it develops the integral conceptof the territorial sovereignty.

I would propose that the main trigger of the concept ofthe territorial sovereignty was the peculiar collisionbetween the French King and his vassals or subjects - feudalpossessors and free cities. Firstly, the feudal vassals andfree cities by their territorial possessions restrictedKing’s sphere of power;90 secondly, these possessions, whichwere impenetrable by King’s commandment, maintaineddisruption between the King and his subjects residing withinthe territorial possessions.91 The case was aggravated bythe Mediaeval military law which granted to any noble theright to private war (guerre couverte) as well as madesuspicious to levy public war (bellum hostile) without papal orimperial approval. In fact, the collision was not insofarbetween public authorities as in the case of Emperor’simperium or Pope’s summa potestas, but between the King’spower and private rights of the vassals whether to wars orto possessions. In order to eliminate this permanentrestriction of king’s sovereignty, on the one hand, thesovereignty must have overlapped territory and on the other89 “Три силы оспариваютъ въ среднiе въка самостоятельность государства.Прежде всего церковь, стремящаяся навязать государству чисто служебноепо отношенiю къ ней положнгiе, затъмъ римская имперiя, признающая заотдъльными госгосударствами только значенiе провинцiй, наконецъ, крупныеленные владъльцы и корпорацiи, сознающiе себя самодовлъюшими силамирядомъ съ государствомъ,” Георгъ Еллинекъ, Общее ученiе о государствъ, 321.

Представленiе о суверениететъ возникло въ борьбъ съ этими трнмясилами и не можетъ быть понятно внъ связи съ этой юорьбою, 90 “Вследствiе надъленiя феодальныхъ владельцевъ и коммунъгосударственной властью, къ которой они относятся какъ къ объекту своегочастного обладанiя, государству противостоять въ его собственныхъпределахъ самодовлъющiя публичноправовыя лиуа, право которыхъ изъято отъвоздъйствiя государства,” ibid., 325. 91 Вторымъ послъдствiемъ этого состоянiя было разобщенiе главыгосударства отъ всей массы населенiя. При строгомъ проведенiи леннойсистемы, всъ получившiе лены не непосредственно отъ королябыли обязанывърностью и повиновенiемъ не ему, а баронамъ, и народъ долженъ былъискать превосудiя прежде всего въ судъе сеньра,” Георгъ Еллинекъ, Общееученiе о государствъ, 325-326.

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one, the vassal’s possession must have acquired politicaldimension and lost the immunity of the private possessionguaranteed as ius in re [right to thing] if expressed in Romanprivate-law terms. Respectively, suzerain must have beentransformed into sovereign, as well as private possessionsmust have been conceived as public-political territorialentities.

Firstly, the French lawyer, Loyseau has formulated thisvery transformation. He suggested that as seigneur inheritedcertain fief or domain, similarly sovereignty in abstracto wasattached to state, kingdom or republic.92 The parallelismbetween public and private, or rather the trend of mergingthese two spheres, here appears evident: suzerain is turnedinto sovereign who anymore is not only a senior over hisvassals but is also the authority over his vassals’ fiefs,and respectively, fiefs are not anymore only privatepossessions with weather absolute or partial immunities.This concept of the territorial superiority makessovereignty in all respects undividable, unalienable, andabsolute not only against external but also internal poweror entity. All theorists from Bodin to Rousseau havementioned these qualities of sovereignty what leads to theconclusion that the exact concept of sovereignty, i.e.sovereignty in absolute and full-scale sense, and in therelation to external as well as internal thread, must havenecessitated superiority of territory. In fact, any“external-internal” construction per se implies spatial-territorial connotation.

Some scholars suggest, that the feudal relation betweenvassal and suzerain, which has been regulated by large rangeof rules associated with land93 has replaced the

92 “Et comme c’est le proper de toute Seigneurie d’estre inhérente àquelque fief ou domaine, aussi la Souveraineté in abstracto, estattachée à l’Estat, Royaume ou République,” Charles Loyseau, Triaté desSeigneuries, (Paris: n.d., 1608), 25.93 “…земля получила для людей значенiе единственнаго связующаго начала.Помъестья и лены представляли собою соцiальныя группы, для которыхъединственнымъ базисомъ служило обладанiе землею, и огромная массафеодальгыхъ правилъ, группировавшихся вокругь этого центральнаго факта,вполнъ проникнуты его влиянiемъ... Связь между землевладъльцемъ ивассаломъ уже совершенно другаго рода, нежели связь, вытекающая изъединокровiя,” Генри Сёмнер Мэн, Древнейшая история учреждений, 69-70.

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consanguinity and remained the only social cohesivecondition. As we have seen above the land relations per sedid not go beyond the private sphere. Moreover, not the landrelations per se entailed the political concept of territorybut, instead, the strife for elimination of the feudal landrelations necessitated the concept of the territorialsovereignty.

Finally, the other two factors, Pope and Emperor mustbe considered as well in order to demonstrate that thesemost powerful political figures in the Middle Ages could notand did not trigger the territorial sovereignty.

Theoretically the Roman Emperor is the lord for allother secular princes94. But the French Kings (as well asother apologists of regna) deny the supremacy of theEmperor. In addition, the denial receives considerablesupport from papal apologists, who are much happier to seesecular power dispersed in many hands than concentrated in asingle.95 Theory takes into account this real-politicaldenial and constructs the privilege of the independence ofthe King as if granted by Emperor in immemorial times. Whatis worth of mentioning, the theory never deduces theindependence from the essence of the state96. Consequently,the independence from the Emperor is the concession ofEmperor himself but not advantage of sovereignty, at leastin theory. In addition, the king, despite granted privilegesand being emancipated from the Emperor, still remains de iurewithin the federation of the empire 97 what makes senselessthe concept of sovereignty as the protecting measure againstthe Emperor’s authority. However, even though if anycontroversy could take place between the king and Emperor,the collision would remain within the area of public

94 “Imperatorem qui diceret non esse dominum et monarchum totius orbisesset forte hereticus” [who would say that that emperor is not lord andmonarch of the whole world would be a heretic], Bartolus, ad. L. 24 D.de capt. Et postlim. 49, 15, N. 7.95 M.H. Keen, The Law of War in the Late Middle Ages, 74.96 Георгъ Еллинекъ, Общее ученiе о государствъ, 322-323.97 “Rex Franciae et Angliae licet negent se subditos Regi Romanorum, nontamen desinunt esse cives Romanos” [although it is appropriate to theKing of France and England to deny subordination to the Roman Kings yetthey are not denied to be roman citizens], Bartolus, ad. L. 24 D. decapt. Et postlim. 49, 15, N. 6.

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dimension and would not affect king’s territorialpossession.

Concerning the Pope’s political ambition, GeorgJellinek suggests that the main source of the idea ofsovereignty resides in the relation between the French Kingand Pope.98 Since the controversy between Phillip theBeautiful and Bonifacius VIII, the literature suggesting thefull independence from Church has appeared in France.99

However, this sophisticatedly elaborated sovereignty wasgeneral, abstract and it did not involve any territorialissue. Or, rather I would share the approach which suggeststhat the controversy between sacerdotium and imperium asconflict between Church and secular authorities in general100

instead of entailing the concept of sovereignty, pushed theapologists of regna as well as “Imperialists” to anotherdirection – to the construction of the divine-right monarchytheological doctrine101 which steadily appeared between the11-17th-centuries exclusively in Europe102. However this98 Не въ борьбъ императора съ папой, а въ отношенiи французского королякъ главъ церкви слъдуетъ искать источникъ идеи суверенитета свътвскойвласти, Георгъ Еллинекъ, Общее ученiе о государствъ, 321.99 “Во время и послъ борьбы Филиппа Красиваго съ Бонифацiемъ VIIIвпервые возникаетъ во Францiи, или по крайней мъръ подъ французскимъвлiянiемъ, литература, энергично отстаивающая полную самостоятельностьгосударства по отношенiю къ церкви,” ibid., 322.100 “Политическая литература... въ концъ XIII въка, разсматриваетъглавнымъ образомъ противоположность sacerdotium и imperium какъпротивоположность церковной и свътской власти вообще, а не какъпротивоположность папства и какого-либо индивидуально опредъленнагогосударства,” ibid, 321.101 “In Europe, where the tradition of imperial unity and order survivedfrom Rome times, a dichotomy developed between the idea of religiousunity and the conception of secular unity. The Pope, as head of theChurch, symbolised the unity of Christendom: the Emperor, as theinheritor of Rome empire, was at least supposed to symbolize the unityand order of the lay world. For centuries this dichotomy of theory, thispartition of allegiance, produced a conflict of policy. The Pope claimedthat he was supreme ruler of the secular as well as the religious world,owing to the inheritance of St Peter and such fraudulent concession asthe Donation of Constantine. The Emperors and the kings felt obliged tofortify their claims to supremacy or independence by inventing asupernatural sanction of their own. It was thus that there arose themyth of the ‘Divine Right King’,” Harold Nicolson, Monarchy, 189.102 “The historians inform us that it is an error to suppose that thedoctrine of the Divine Right of Kings, which aroused such argument

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theological doctrine had little if any common with thepurely political and realistic concept of sovereignty. EvenJames I claiming his divine right and inherited by the rightprerogatives, in the massage to the parliament admitted thathe had no exclusive right to lawmaking as well as totaxation.103

between the eleventh and the seventeenth centuries, was directly derivedfrom the primitive fertility myth that monarchs were incarnate gods. Itwas, we are told, apolitical formula invented by those who contested thepapal claim to universal supremacy,” ibid., 193.103 “In a massage to Parliament in 1610 he acknowledged ‘that he had nopower to make laws of himself or exact any subsides de jure without theconsent of the three estates’,” ibid., 202.

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Conclusion

This brief observation unfolds how princely sovereigntyhas been historically emerged and what it has beenessentially. The final stage of the formation of the nationis the migration of the princely sovereignty into thepopular sovereignty in the 18th century. All essentialcharacteristics of sovereignty contained in Rousseau’s SocialContract had been already presented in his predecessors’theories, and in certain respect even fuller104. Rousseau’sessential novelty was construction of the popularsovereignty. Later, Abbé Sieyes’ work, Qu’est ce que letiers-état?and particularly chapter 5 made clear that popularsovereignty as the general will would become the veryfeature of nation105. 104 E.g., Rousseau has not elaborated the concept of territorialsovereignty. His territorial concepts do not imply any politicalinsight. They are purely Aristotelian.105 For the demonstration of the importance of the popular sovereigntyfor the idea of nation, I would adduce some excerpts from one of thefirst theorists’ and “authors” of the French revolution, Abbé Sieyes’work, Qu’est ce que letiers-état? Chapter 5: ,,Нация существует прежде всего и есть начало всего. Ее воля всегдазаконна, она - сам закон. Раньше нее и выше нее - только естественноеправо”;“Было бы смешно предполагать, что сама нация связана какими-тоформальностями или тою самою конституциею, которой она подчиняет своихуполномоченных. Нация не нуждается ни в каком праве”;“Воля нации, напротив того, законна, благодаря уже одному своемусуществованию; она сама источник всякой законности”;“Народ не должен позволять опутать себя никакими обязательствами поотношению к кому бы то ни было, потому что это значило бы потерять своюсвободу навсегда”;“В чем бы ни заключалась воля народная, - достаточно того, что народэтого желает, чтобы его желание стало законом”.In addition, I would adduce the excerpt from the work alludingterritory as a locus for nation as well as means of the expressing ofits will:

“Где найти нацию? Там, где она находится — в сорока тысячахприходов, заключающих всю территорию, всех жителей и всех плательщиковподатей - вот где нация. Для удобства можно было бы всю территориюразбить на участки, например, 20-30 приходов могли бы образоватьизбирательный округ для выбора первостепенных депутатов, выборщиков.Таким же путем округа соединились бы в провинции, которые определили быуже настоящих специальных депутатов с полномочием решить вопрос о

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Although the very characteristic of nation is thepopular sovereignty, nevertheless I have given lessattention to it and stop scrutinizing at this point, i.e. atthe territorial sovereignty, which is not only nation’scharacteristic. It seems that the transmission from thepreceding pre-territorial-sovereign epoch to princely-territorial sovereignty is far more arduous andsophisticatedly entwined in extended period of time, whatdeserves more attention, than the distinction betweenprincely and popular sovereignty abruptly and brutallyshaped by the Enlightenment thinkers and French Revolution.The transformation of princely territorial sovereignty intonational sovereignty is the subject of the future researchand must be studied in connection with the Enlightenmentideas and the French Revolution.

конституции Генеральных штатов”.This excerpt leads to the conjecture that in the case of nation,

territory is not only the strengthening and protecting condition forsovereignty as I have mentioned supra but also the condition, whichmakes possible and feasible the expression of the general will ofnation.

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