NEGOTIORUM GESTIO
This pamphlet is not intended for lawyers. I can therefore touch only cursorily, as on so many other things, upon my theory of the legal basis of a State.
I must, nevertheless, lay some stress on my new theory, which could be maintained, I believe, even in discussion with men well versed in jurisprudence.
According to Rousseau's now antiquated view, a State is formed by a social contract. Rousseau held that: "The conditions of this contract are so precisely defined by the nature of the agreement that the slightest alteration would make them null and void. The consequence is that, even where they are not expressly stated, they are everywhere identical, and everywhere tacitly accepted and recognized," etc.
A logical and historic refutation of Rousseau's theory was never, nor is now, difficult, however terrible and far-reaching its effects may have been. The question whether a social contract with "conditions not expressly stated, yet unalterable," existed before the framing of a constitution, is of no practical interest to States under modern forms of government. The legal relationship between government and citizen is in any case clearly established now.
But previous to the framing of a constitution, and during the creation of a new State, these principles assume great practical importance. We know and see for ourselves that States still continue to be created. Colonies