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member of the community to treat the delinquent as an outlaw—that is, to use any kind of force against him so that he is compelled to leave the community, which means to perish. In case of certain material damage by one individual to another's property, the law authorizes the members of the group to which the injured individual belongs to use force to deprive members of the group to which the delinquent belongs of some property as compensation for the damage. In effect, this means that the principle of self-help prevails.
The principle of self-help is a consequence of the complete decentralization of a legal order. In a decentralized legal order, the essential legal functions are not conferred upon special—or, what amounts to the same, central-organs which function according to the principle of division of labor but are left to the individual members of the community. This does not mean that there are no legal organs at all under a decentralized coercive order. The coercive acts provided for by this order as reactions against its violation are sanctions, and the individuals authorized by the order to execute these sanctions act as organs of this order or of the community constituted by it. However, these individuals are not special organs who function according to the principle of the division of labor—that is, they are not central organs. In the mind of primitive men living under a completely decentralized legal order, there is a clear distinction between an illegal and a legal use of force, between a murderer who violates the law and an avenger who executes it. However, in a concrete case, it is impossible to give an objective answer to the question of who is a murderer and who an avenger, or, more generally, whether a use of force is illegal (a delict) or legal (a sanction). Nevertheless, the use of force as a sanction is considered to be a reaction by the community against a delict, for even under a decentralized legal order, where the principle of self-help prevails, the use of force having the character of a sanction is considered to be reserved to the legal community. The force monopoly of the community established by a legal order may be decentralized. Even a completely decentralized legal order affords its subjects a certain degree of collective security; but it is the lowest possible degree.
Since under a completely decentralized legal order the question as to who is right and who is wrong in using force cannot be decided in an objective way, the social situation established by such an order is not clearly distinguishable from a situation where no security exists, just as, in its application to a concrete case, a completely decentralized coercive order is hardly distinguishable from a state of anarchy. This is why some writers refuse to consider a social order as law as long as that minimum of centralization constituted by the establishment of courts is not achieved, and also why in traditional terminology we speak of collective security only when the principle of self-help is
eliminated and replaced by a legal technique characterized by a certain centralization. Thus the organization of collective security, in the specific or narrower sense of the term, consists mainly, but not exclusively, in the centralization of the coercive order constituting the legal community.
Since the extent of this centralization may vary, collective security may be established in different degrees.
1. Cf. e. g., Maurice Bourquin, "Le Problème de la Sécurité Internationale." Académie de Droit International. Recueil des Cours. 1934. III. Tome 49, P. 473; and Collective Security, a record of the Seventh and Eighth International Studies Conferences of the League of Nations. Paris 1934—London 1935. Edited by Maurice Bourquin. Paris 1936, p. 131.
2. Cf. pp. 4, 34 ff.
3. Legal security in this sense must be distinguished from the "legal security” which is the translation of the German term “Rechtssicherheit". The German term designates the principle that the judicial and administrative acts of a state must be determined by pre-established general legal norms. In English terminology, this is called the "rule-of-law" principle.
4. Professor Ludwik Ehrlich in: Collective Security, p. 152.
5. Memorandum of the Canadian Institute of International Affairs, submitted to the International Studies Conference 1934–35, Collective Security, p. 132.
6. Dietrich Schindler, in a memorandum on “The Notion of Neutrality in a System Including Repression of Resort to War," submitted to the International Studies Conference 1934–35; Cf. Collective Security, p. 26.
7. Prof. Schindler advocated the above mentioned doctrine mainly for the purpose of justifying the maintenance of Switzerland's permanent neutrality within a system of international security. Cf. p. 169.
8. Collective security is a function of law, regardless of the way in which the law is created, that is to say, with or without the participation of the individuals subjected to the law. In opposition to this view, Sir Alfred Zimmern, “The Problem of Collective Security” (in: Neutrality and Collective Security, edited by Quincy Wright, Chicago 1936), asserts : "Collective Security,” which means "safety of all by all," "is a democratic notion” (p. 4). "Where there is no freedom [meaning a democratic constitution] there can be no cooperation for collective security" (p. 23). From this view follows that there can be no collective security within a non-democratic state, nor within an international community which is not composed exclusively of democratic states and is constituted by an international order which has not a democratic character. However, Zimmern says also: The principle of collective security "as applied to the world as a whole" means “a condition of law and order for the world” (p. 9). This statement is compatible with the doctrine that collective security is a democratic notion only under the presupposition that law is by its very nature a democratically created social order, that a social order created in another way is no law. Such a concept of law is inadmissibly narrow and in open conflict with the general use of this term; for most of the social orders of the past, and many of the present day, generally called “law" have no democratic character. If collective security is protection against the use of force by one subject of the community directed at another subject, and hence is established by an effective prohibition of this use of force, historical experience does not support the doctrine that collective security can be guaranteed only by a democratic legal order.
II. THE DIFFERENT DEGREES OF COLLECTIVE
Since collective security is the function of a legal order, its organization is closely connected to the fundamental relationship established by the law between delict and sanction, the relationship between a definite action endangering the security of the community and the corresponding collective reaction. The action against which the collective reaction of an international security system is directed is usually characterized as "aggression.” The definition of this concept may be narrowly or videly delimited.
dely delimited. The degree of collective security depends mainly on the extent to which the reaction is centralized. However, the importance of this centralization depends on the scope of the actions against which the more or less centralized reaction is directed. Hence, the degree of collective security increases not only with the extent to which the reaction against certain harmful actions which endanger security is centralized, but also with the scope of the actions against which the reaction of the security system is directed. The definition of aggression 1 is particularly important in this aspect.
1. THE SCOPE OF PROTECTED INTERESTS
With regard to the security which the members of a national community enjoy, it makes a remarkable difference whether the social order constituting this community protects the members against every use of physical force by attaching sanctions to all of them or protects them only against that use of physical force which results in the destruction of life that is, protects them by providing punishment only for murder. Even under the most primitive legal orders, murder is not the only crime. The development of the law goes hand in hand with an extension of the interests protected by sanctions directed against their violations. These violations may consist of conduct which does not have the character of a use of physical force. For example, non-payment of a debt and slander are both delicts under positive law, but neither constitutes a use of physical force. A legal order which provides for civil execution to be directed against the property of a debtor and imprisonment or fine to be inflicted upon a slanderer guarantees the security of the individual to a greater extent than a legal order which does not react against such conduct. All national legal
orders provide for sanctions not only against delicts which consist of a use of force but also against other violations of interests. In other words, these national legal orders also protect interests which may be violated in a way other than by the use of force. However, no legal order can protect all the possible interests of its subjects. It is always up to the legal authority to decide which interests are worth being protected. Hence, there are always interests the violation of which is not a delict. This is another reason why the security guaranteed by the law is never absolute security.
Since the security guaranteed by the law consists of protection against the violation of certain interests, and since this violation is not limited to the use of force, the question arises as to whether or not the concept of legal, and this means collective, security may properly be restricted to protection against the use of force. Such a definition can be maintained only if the term "force” is meant to include not only physical force but any illegal conduct—that is, any conduct by a subject of the legal order which is legally forbidden because of its harmful effect on another subject and which is therefore performed against or without the will of this subject. It is inevitable that this broader meaning of the term "force” be accepted if the sanctions provided for by positive law—the deprivation of life (capital punishment), of liberty (imprisonment), and of property (fine and civil execution) are to be conceived of as a use of force or as enforcement actions. “Force,” in the sense of physical force, is used to overpower an individual who offers resistance. This is normally the case under a primitive legal order when the execution of sanctions is decentralized, that is, when the execution is left to the individual members of the community. However, if the execution of sanctions is centralized, as under the law of a modern state, the individuals on whom these sanctions are inflicted normally offer no resistance, since the centralization of the execution of the law makes any resistance ineffective. Hence, these sanctions are a use of force (i. e., are enforcement measures, or, as it is usually formulated, are enforcing the law) insofar as they are carried out against or without the will of the subject concerned. Consequently, physical force is to be used only in the very exceptional case of resistance. A surgical operation performed by a physican with the consent of a patient is not a use of force. However, an action of the same kind performed against the will of a victim must certainly be considered to be an enforcement action. In this sense, force is implied in any illegal conduct of a person directed toward another person against or without the will of the latter. This means that any delict, just as any sanction, may be considered to be a use of “force.” Thus the very concept of force, as it applies to the description of the essential
function of the law which is to provide for a sanction against a delictthat is, to provide for a use of force to prevent a use of force changes its meaning under the influence of centralization. Such centralization results in greater effectiveness of the law and the collective security guaranteed by it.3
2. THE CENTRALIZATION OF THE PROCEDURE FOR THE
ASCERTAINMENT OF A DELICT (I. E., AN ILLEGAL USE OF FORCE) AND FOR DETERMINING THE PARTY RESPONSI. BLE FOR IT
This centralization refers to the enforcement measures which are taken under the legal order as a reaction, which means as a sanction, against an illegal use of force, in either the narrower or wider sense of the term. If a sanction is to be taken as a reaction against an illegal act, the existence of such an act must first be ascertained. Only after this function is performed, can a sanction be executed. These are the two stages in which every legal order is applied. The system of collective security established by a legal order operates through the application of this order. Both stages may be more or less centralized, and the centralization of one is not necessarily accompanied by the centralization of the other. In principle, the centralization of the application of the law is independent of the centralization of the creation of the law—that is, independent of the establishment of the general legal norms to be applied in concrete cases. The centralization of the creation of the law is also important in determining the degree of collective security. This aspect of the problem will be discussed later.
The complete decentralization of the first stage of the application of the law is a characteristic feature of a primitive legal order which does not institute special organs competent to ascertain objectively the fact that the law has been violated, i. e., that an illegal use of force, an act of aggression, has taken place; nor are special organs competent to determine the individual or individuals responsible for such an act of aggression. The individuals involved in the conflict arising from a delict, either actually or allegedly committed, the conflict in which the two parties are those violated by the delict and those made responsible for it, must decide the questions concerned themselves. If there is no agreement between them that the law has been violated and no agreement on the compensation for the violated interest, and for various reasons such an agreement is rarely possible, the only way to settle the conflict is by the resort to force by one party against the other. The question remains undecided as to whether this use of force is legal or illegal, whether it is a sanction or a delict, and, consequently, whether