A New Critique of Theoretical Thought. Deel 3. The Structures of Individuality of Temporal Reality

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Part II
(Continuation)
The structures of the differentiated institutional communities with a typical historical foundation

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Chapter III
The structural principle of the state

§ 1 - Introduction to the inquiry into the structure of the state institution. The crisis in the theory of the state and the dialectical process in the development of the various theories.

In the last chapter we first discussed the structures of natural institutional communities embraced by the radical type of the biotically founded and morally qualified societal units.

To this we added an inquiry into the historically founded main types of primitive undifferentiated and organized units, whose structure is often erroneously confounded with that of the natural communities. We shall now investigate the structural principles of the historically founded communities of a differentiated character which exhibit an institutional nature in the sense defined earlier¹.

Among the primitive organized communities we have also met with societal units which may be called institutional insofar as their members belong to them by birth or at least are not free to leave them. But not all types of these undifferentiated organizations appeared to exhibit this institutional trait. The men's and women's societies, for instance, discussed in the 5th section of the preceding chapter, can certainly not be considered as institutional communities. They are to be sharply distinguished in this respect from the patriarchal joint families, the sibs and the primitive domestic communities, which do display this character, just like the tribal organizations, and to some degree the medieval guilds, insofar as they imitate the sib-structure.

Among the differentiated organized communities only the State and the Church appeared to be of an institutional nature. The present chapter will be devoted to an ample analysis of the inner structural principle of the State. That of the Church-institution will demand our attention in the next chapter.

1 See p. 187 of this volume.

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The chaotic confusion in the conception of the nature of the State.

Perhaps there is no other organized human community whose character has given rise to such a chaotic diversity of opinions in modern social philosophy and social science as the State. And the neglect of the study of the internal structural principles of human societal relationships has nowhere been more disastrous than in the general theory of the body politic. In recent times this theory has come to a crisis that the Humanistic views were unable to overcome. But the neglect of the transcendental internal individuality structure of the State in political and social theory is not a recent evil. Already in ancient philosophical political theories the conceptions of the State appeared to be so vague and undefined as to the inner nature of this institution that they were bound to vitiate the entire view of human society.

In an earlier context we have seen that the Platonic and Aristotelian conceptions of the polis operated with the metaphysical scheme of the whole and its parts, and conceived of the State simply as the totality of human society. The Aristotelian view of the polis as ‘societas perfecta’, as a self-sufficient, ‘autarchic’ community whose aim is the ‘good life’, really lacked any internal structural limitation¹.

Besides, there was no insight here into the typical historical foundation of the State as a non-natural institution. On the other hand this view remained free from the prejudice of a modern historicistic positivism that looks upon the body politic as a variable historical phenomenon, apart from any normative principle.

In Plato and Aristotle a normative idea of the State of a supposed supra-temporal, metaphysical character is recognized as the normative essence of this community, and laid at the foundation of any empirical enquiry into its factual manifestations. Plato's ideal State is partly oriented to a constructive idealistic metaphysics, and partly historically bound to the formal patterns of the Doric and Cretan States.

1 This is erroneously denied by A. Menzel, Griechische Staatssoziologie (Z.f. öff. R. XVI, 1936) pp. 24 ff. The fact that Aristotle treats of territory, nation, and magistrate, and recognizes the important position of the military factor in the State, does not mean that his view is oriented to the real structural principle of this institutional community. Cf. Pol. I, 1280 b, where the only essential characteristic of the State is called: ϰοινωνία τοῦ εὖ ζῆν (community of good life).

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Nevertheless it is remarkable that notwithstanding the universalistic identification of the ideal polis with the whole of societal life, the inner structural principle of the State proper urges itself upon Plato, at least in his project of the organization of the typical political functions.

There are two genuinely political classes in this polis, viz. that of the philosophers, who rule according to the idea of justice, and that of the warriors, in which the State's monopoly of the sword-power is represented. This division implicitly recognizes the two peculiar structural functions that will appear to be radical-typical for the State institution. In itself this fact is important, especially in its contrast with the modern historicist conception, which denies the State an invariable structural principle and considers it to be an absolutely variable historical phenomenon.

The character and the different meanings of a crisis in the theory of the State. The Greek Sophists and the Renaissance figure of Macchiavelli.

Every time the belief in an invariable structural principle of the body politic has been sapped - in whatever sense this principle is conceived of - there arises a crisis in the theory of the State. A relativistic attitude then gains the upperhand.

Such a crisis may be the result of a really critical-theoretical attitude with regard to traditional political theories which in an uncritical way hold an existing historical form to be the unchangeable model for every kind of political life. Then the crisis is a necessary transitional stage in the theoretical reflection on the problem of the State, and it may be called useful at least in this respect.

Such a theoretical crisis has no doubt been prepared for in the course of time by an internal process of decline in the traditional life of the body politic. This process may simply be a symptom of decadence, but it may also be an unavoidable transition to a new concentration of public life. The first theoretical crisis in the Greek view of the State was started by the radical left wing sophists. It was the result of a decay of the foundations of Athenian democracy after the death of Pericles. Then the entiry Greek city-State passed through a fatal ‘twilight of the gods’ and the once so proud polis was never to see another dawn.

The naturalistic theory of the absolutist power-State, on the contrary, directed by the Renaissance statesman Macchiavelli

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against the traditional medieval view, announced a real renaissance of political thought. It was the theoretical precipitation of a crisis which had already found expression in the individualist-nominalistic theory of the later Middle Ages. It announced the transition from an internally decaying medieval idea of the Holy Roman empire to the modern bureaucratically organized and strongly centralized national State. In the hopelessly divided Italian city-States of the Renaissance period the necessity of a powerful national body politic was sharply felt. The modern State-idea was a subject of lively discussion. Here the name ‘stato’ was first used to indicate the body politic as a whole.

The recent crisis in the Humanistic theory of the State.

The most recent crisis in political theory, culminating in the ‘theories of the State without a State-idea’, has been prepared for by quite a complex of factors to which I have devoted an elaborate analysis in my De Crisis in de Humanistische Staatsleer.

In it the decline of the normative Humanist idea of the civic law-State plays a dominant part. This idea was based on the Humanistic science- and personality-ideal, whose metaphysics has been worn away by relativism and historicism. Western man had become aware of a fundamental historical relativity of the supposed self-subsisting ideas of natural and rational law. In the crisis of a regular ‘Götterdämmerung’¹ of all ‘absolute’ standards, the world of ideas of post-Kantian freedom-idealism had also been unmasked as historically conditioned. Then in political theory, too, relativistic positivism and historicism came to the fore. There was no longer room for an invariable normative structural principle of the State. Richard Schmidt merely formulated the prevailing relativistic conception in his Allgemeine Staatslehre when he wrote: ‘Modern political theory emancipates itself from the speculative view, it leaves alone the metaphysical question about the idea of the State and restricts itself to the empirical world’².

1 i.e. twilight of the Gods.

2 Richard Schmidt, Allgemeine Staatslehre (Leipzig, 1901). Bnd. I, p. 117: ‘Die neuere Staatslehre macht sich von der spekulativen Betrachtungsweise los, lässt die metaphysische Frage nach der Staatsidee bei Seite und beschränkt sich auf die Erfahrungswelt’.

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Carl Schmitt also gave expression to the relativistic destruction of the entire ideology of the State founded in the Humanistic faith in reason. About the modern ‘material’ concept of statute law (which nowadays contains no other criterion for its distinction from the statute in a formal sense than its pertaining to a general rule) he says: ‘All other properties of the statute law as a substantial-rational, just and reasonable arrangement have become relativized and problematical. The faith in natural law, implying the belief in the law of reason and in reason in the law, has disappeared to a considerable degree. The civic law-State is only saved from completely merging into the absolutism of changing Parliamentary majorities by the still factually existing respect for this universal character of the statute law’¹.

A metaphysically conceived normative idea of the State is no longer recognized in modern scientific thought insofar as it has been infected by Historicism². Neither can this thought

1 Carl Schmitt, Verfassungslehre (1928), p. 156: ‘Alle andern Eigenschaften des Gesetzes als einer substanziell-rationalen, gerechten und vernüftigen Anordnung sind heute relativiert und problematisch geworden; der naturrechtliche Glaube an das Gesetz der Vernunft und die Vernunft im Gesetz ist im weiten Masze entfallen. Was den bürgerlichen Rechtsstaat vor völliger Auflösung in den Absolutismus wechselnder Parlementsmehrheiten bewahrt ist nur der tatsächlich noch vorhandene Respect vor diesem generellen Character des Gesetzes’.
Cf. also Hermann Heller, Der Begriff des Gesetzes in der Rechtsverfassung, Veröffentlichungen der Vereinigung der Deutschen Staatsrechtlehrer, Heft 4 (1928) p. 115: ‘Einer klaren Erkenntnis von der Bedeutung des Gesetzesbegriffs im Rechtsstaate steht heute die politische Degeneration des Rechtsstaatsgedankens im Wege’. [A clear knowledge of what the concept of law means in a law-State is made impossible nowadays by the political degeneration of the idea of the law-State],
A critic of my book De Crisis in de Human. Staatsleer has argued against it that such pronouncements were only to be found in German writings on the State. But this is hardly tenable for anyone who has been acquainted with recent political literature. Not only German but also the French political literature after the first world-war was penetrated by this crisis of the law-State idea. In the Netherlands this crisis found its most striking expression after the second world-war in the remarkable book of H.W. Scheltema, entitled Beschouwingen over de Vooronderstellingen van ons Denken over Recht en Staat (1948). In consequence of the appearance of this work I wrote an article entitled De Vooronderstellingen van ons Denken over Recht en Samenleving in de Crisis van het moderne Historisme (in the juridical quarterly Themis-Rechtsgeleerd Magazijn 1949, pp. 193-249).

2 Of late in Roman Catholic circles an institutional theory has been gaining ground, which tries to give the historical sociological conception of the State a metaphysical foundation. It has been founded by the late French professor of constitutional law, M. Hauriou, who in his earlier sociological works was strongly under the influence of Comtian positivism but later on underwent the influence of the philosophy of life and ultimately founded his institutional conception of the State in a metaphysical State-idea, conceived of in a neo-Platonic sense. His colleague at the Nancy University, G. Renard (La théorie de l'institution, Essai d'ontologie juridique 1930), tried to accommodate the institutional theory of Hauriou to the traditional Thomistic-Aristotelian view. Hauriou himself, however, was much more oriented to the Augustinian-Platonic metaphysics. The institutional theory lies outside of the cadre of the ‘crisis in the Humanistic doctrine of the State’ and, therefore, we need not enter into it in the present context.

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accept the idea of an immutable structural principle of the body politic in our sense. The shibboleth of a scientific political theory was declared to be the elimination of all normative evaluations. Thus the attempt was made to form an a-normative notion of the State on a merely historical and positivist sociological basis.

The supra-historical societal structures of ‘historical phenomena’.

But in what way could such an a-normative conception be formed on the basis of the infinite multiplicity of ‘historical forms’ of political life? Evidently any historical inquiry into the development of the State-institution must be based on a structural idea of the latter, if we are to be scientifically justified in speaking univocally of a State.

Is a State an absolutely transient historical occurrence, like e.g., ‘the battle of Waterloo’? Evidently not. On second thought ‘the battle of Waterloo’ itself cannot be grasped in an exclusively modal-historical sense. It is related to the structure of the State insofar as it occurred in a war between the Napoleonic French State and the allied States which had united to put an end to the Napoleonic empire. Outside this relation it cannot be understood in its historical structural meaning. All individual historical phenomena manifest themselves in social individuality structures which as such are not of a modal historical nature, let alone of an absolutely transient individual historical character. The variable social forms in which the State-institution is realized in the course of time should never be confounded with its structural principle, founded in the plastic horizon of experience and reality, which alone makes possible our ex-

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perience of the transient State formations. This fundamental truth must again and again be imprinted in our readers' minds, in opposition to the prevailing relativistic tendencies of thought.

The representatives of modern political theory who tried to give a critical account of the structure of the State and did not content themselves with a kind of naïve empirical positivism, were often oriented to a merely methodological neo-Kantianism. The leading part in their epistemological reflection was given to the dualistic separation between sein and sollen¹ as methodological viewpoints. Accordingly the general theory of the State was divided into an ‘empirical’ sociological, and a normative juridical part. From this dualistic methodological viewpoint, which in the last analysis was ruled by the Humanist basic motive of nature and freedom, any attempt at a synthesis of the juridical and the sociological conceptions was excluded in principle. The German scholar Georg Jellinek, who nevertheless tried to combine these antithetic conceptions, could not indicate any starting-point from which such a synthesis would be made possible. We shall presently return to this dualism in the general theory of the State.

A result of so-called critical epistemological reflection in the general sociological theory of the body politic was the reduction of this organized community to a subjective synthesis of a multiplicity of socio-psychical relations into a teleological unity (‘Zweckverband’), which was supposed to function only in human consciousness, without any correspondence to reality. The so-called pure legal theory of the State, on the other hand, even resolved the body politic as an organized community into a logical system of legal norms, which should be conceived apart from any causal sociological viewpoint. This entire epistemological reflection remained oriented to a naturalistic, merely functionalistic and individualistic conception of reality. All individuality structures in human society were in principle levelled down, and the organized communities were resolved into a formal synthesis of elementary relations. The material content of this formal synthesis was completely abandoned to the historicistic view.

1 Between what is and what ought to be.

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The levelling of the individuality structure of the State in the overstraining of functionalistic thought.

In my book De Crisis in de Humanistische Staatsleer I have shown in great detail what modern nominalistic sociological and ‘normological’ theories of the State have left of the body politic, as a result of this overstrained functionalistic mode of thought. To give only some examples: To Ludwig Waldecker the unity of an organized community, as such, is merely a synthetical category of thought. By its means an incalculable multitude of socio-psychical interactions between individuals cooperating in the social process are made accessible to thought in their totality¹.

From this nominalistic viewpoint there is not any qualitative essential difference between the State and ‘all other organizations’. ‘Neither the organizations with a particular purpose, (such as, e.g., a limited liability company), nor the autonomous political communities which are components of the State (e.g., municipality, district, and province), are different from the State in a qualitative sense, but only quantitatively and functionally’². From this viewpoint it is not surprising that the writer does not mind qualifying also the territorial national evangelical Churches as States. He justifies this view by the argument that however much nowadays we associate the idea of ‘spiritual interactions’ with the notion ‘Church’, this association is only historically determined³.

A similar mentality is evident in Max Weber's pronouncement that sociologically speaking a modern State can only be considered as a ‘large-scale economic business’ and that there is not any essential difference between a private economic enterprise, e.g., a large factory, and a present-day State⁴. Kelsen could readily subscribe to this statement on his ‘normological standpoint’, and remarked that for this very reason the organizational problem in both cases is identical⁵.

The same tendency is seen in the guild socialist view, which

1 Waldecker: Allgemeine Staatslehre (1927) pp. 81-82 and 214-215.

2 ‘Weder die Organisationen für bestimmte Zwecke, sagen wir etwa vom Typus einer Aktiengesellschaft, noch die Kommunalverbände (Gemeinde, Kreis, und Provinz), unterscheiden sich qualitativ, sondern stets nur quantitativ und funktional vom Staate’.

3 Op. cit. p. 217.

4 Max Weber, Parlement und Regierung im neu geordneten Deutschland (1918) p. 15.

5 Vom Wesen und Wert der Demokratie, p. 17.

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Harold Laski has characterized as the opinion that the State is ‘a body on the same footing as the Miners' Federation’¹. In opposition to the levelling sociological conceptions of the body politic which eliminate its normative structure, the ‘normological’ theory of Kelsen handled only a ‘purely juridical’ viewpoint, which was found in the ‘Sollensebene’². His overstraining of the juridical concept of function, denatured in a logicistic way, assumed grotesque proportions in the ‘normological’ identification of the State with a logical system of legal norms deduced in his so-called ‘pure legal theory’.

1 Laski, A Grammar of Politics, p. 73.

2 The realm of what should be.

The dialectical ‘cultural-scientific’ (‘geisteswissenschaftliche’) method applied to the general theory of the State. Rudolf Smend and the former ‘Berlin School’.

The introduction of the dialectical cultural scientific (or ‘geisteswissenschaftliche’) method into the general theory of the State, oriented to Litt's earlier discussed phenomenological sociology, could not show a way out of the crisis. It did not rest on a normative structural idea of the State in which the historicistic relativizing of all normative standards is to be overcome. In my De Crisis in de Humanistische Staatsleer I criticized the application of this method of thought to political theory in an analysis of the ‘Integrationslehre’ of the founder of the former ‘Berlin School’, Rudolph Smend. In the meantime this school was definitively dispersed by the national socialist revolution in Germany.

Heller's dialectical structural concept of the State, and the historicist view of reality.

There is, however, one work on the general theory of the State which, at least partly inspired by Litt's dialectical formal sociology, deserves our special attention in this context. I mean that of the German scholar Hermann Heller.

Heller's methodological starting-point and his actualistic view of the unity of the State as always involved in a process of becoming, as ‘plébiscite de tous les jours’³, were the reason why I formerly classed him with the ‘Berlin School’. His conception

3 He borrowed this word for the State from Renan. Cf. his book Die Souveränität (Berlin und Leipzig, 1927, p. 82).

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of the State, however, deviated already from the outset from that of Smend. And Heller's Staatslehre (1934), published posthumously and edited by Gerhart Niemeyer, cut through nearly every connection with Smend's ‘Integrationstheorie’. In spite of his formal maintenance of Litt's dialectical-sociological method, he also relinquished some basic thoughts of Litt's sociology. As a matter of fact he seems never to have quite understood them¹. He broke with the anti-axiological conception of sociology² and recognized the real State-institution as a subjective ‘Aktzentrum’³. His standpoint as to these two points thus became the direct opposite to Litt's, though Heller did not realize this⁴. But this renders his posthumous work all the more important as a serious attempt to overcome the theoretical crisis in the general theory of the State. By means of a dialectical structural concept of the body politic he at least means to do full justice to the all-sided structural reality of this institutional organized community, and to bridge the neo-Kantian dualism of ‘sein’ and ‘sollen’ dialectically.

It seems to be promising that the normative functions of the State-institution are recognized and that the functionalistic conception of the latter is rejected. Heller even seems to make room for a normative idea of the State in his theory. We will, therefore, examine Heller's dialectical structural concept a little more in detail, in order to give account of its relation to the invariable normative structural principle of every real State-institution, we are seeking for.

Heller's fundamental thesis is: ‘The theory of the State is a structural, not a historical science’. This thesis seems indeed to have risen above the historicistic standpoint. Explicitly Heller opposes a general political theory like R. Schmidt's, which exhausts its resources in giving a survey of the ‘development’ of the ‘State’ in the course of the history of the world. For lack of any well-defined concept of the body politic such an historical

1 Cf. my Crisis in de Hum. Staatsleer, p. 50/1, note 3.

2 Staatslehre (Leiden, 1934), pp. 51 ff.

3 Op. cit.: ‘Unsere Aufgabe ist es, den Staat nachzuweisen als ein wirkliches einheitliches Aktzentrum innerhalb der Vielheit wirklicher und selbständiger, sei es einzelmenschlicher oder kollektiver Akzentren’. [Our task is to show that the State is a real unitary act-centre within the multiplicity of real and independent, either individual or collective act-centres.]

4 Compare p. 254 and pp. 255 ff. of this volume.

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survey applied the term ‘State’ to intrinsically heterogeneous societal relationships that display some trait of a political organization of power. Heller is also opposed to Smend's integration theory which at bottom is equally historicistic and irrationalistic. This theory considers ‘integration’ as the State's essential characteristic, conceiving this process as a perpetual renewal of the unity of the body politic¹. But this viewpoint cannot be suited to a general theory of the State: ‘For in the multiplicity of succeeding processes of integration’, says Heller, ‘exactly that which alone can be the object of political theory must be eradicated and vanish, viz. the unity of the State which maintains itself in all changes’². On a higher theoretical level Heller even wants to do justice in a certain sense to the naïve conception of the ‘political status’ as a relatively constant and real social unit.

On closer examination, however, he appears to give up the historicist view of reality only seemingly. His structural theoretical view of the State is meant to overcome the functionalistic historicist theory, but it is not oriented to an invariable, supra-modal structural principle. Heller only tries to conceive the ‘historical reality of the State’ in all its incessant changes and dynamics according to a viewpoint other than that of the historian. In his opinion the ‘historical forms of human activity’, among which he explicitly mentions the State, the Church and industrial life, cannot be understood, let alone explained, with the logical means of historical science, i.e. with the category of ‘temporal succession’. They can only be understood from the simultaneity of coordinated human activity guaranteed by its social structure, so to say from the cross-section of the stream of history³.

This vertical section through the horizontal functional stream of development of history does not display a chaos of separate facts and occurrences, but an ordered coherence of actions with a certain measure of stability and durability, in which the separate

1 Smend, Verfassung und Verfassungsrecht (1928), pp. 18 ff.

2 Heller, Staatslehre (Leiden, 1934) p. 49: ‘Denn in der Vielheit einander ablösender Integrationsprozesse muss gerade das ausgelöst werden und verschwinden, was allein Gegenstand der Staatslehre sein kann: die in allem Wechsel sich behauptende Einheit des Staates’.

3 Op. cit. p. 50: ‘Nur aus dem gleichzeitigen Miteinander der gesellschaftlichen Wirkungsstruktur, sozusagen aus dem Querschnitt des Geschichtsstromes sind sie zu begreifen’.

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structural forms function in mutual interdependence. ‘Only because we distinguish different functions and structures within the totality of historical reality, do we become aware of the ordered picture of the stream. In this way alone are we capable of making a meaningful selection from the infinite multiplicity of (historical) facts’¹.

This means a complete acceptance of the historicistic view of reality which conceives all the normative aspects of the State under a historic basic denominator. The concept of function and that of structure, too, are historicized. Heller does not want his structural concept to be conceived as a concept of the essential nature of the State as such, but only of the modern West-European State as it has developed since the Renaissance².

This historicistic attitude is also very clear from the following quotation from Heller's Staatslehre, which we insert here on account of its importance for our insight into his dialectical structural concept of the State:
‘This only enables us to point out within historical reality³ the starting-point for the theory of the State as a structural science. Not for a moment do we forget the genetic historical character of the State; neither, however, do we forget the political form of this process. We do not forget that the very theory of the State has to bring about that which historical science is unable to produce with its historical means: to recognize the State as an historical structure, as a function within the totality of the concrete socio-historical constellation. (Italics are mine). Under the aspect of historical science, speaking with Hegel, becoming manifests itself as the truth of being. But in no way does being appear as the truth of becoming under the aspect of the structural theory of the body politic. With such a judgment we would be sanctioning that which political theory and juridical science have always done and especially again in our generation, viz. the absolutization of the momentary State.
All political categories, however, are historically changeable, even the functions and certainly the structure of the present State. They in no way transcend history. All history is of unique occurrence in the irreversible direction of the stream. The structure of a body politic which is real within a particular basic structure of society, is therefore to be considered fundamentally impossible within another historical total situation’⁴. (Italics are mine).

1 Op. cit. p. 50.

2 Op. cit. pp. 3 ff.

3 I italicize.

4 Op. cit. p. 50/1: ‘Damit haben wir erst die Möglichkeit innerhalb der geschichtlichen Wirklichkeit den Ansatzpunkt der Staatslehre als Strukturwissenschaft aufzuweisen. Sie vergisst zwar keinen Augenblick den Werdecharakter des Staates, sie vergisst aber ebensowenig die staatliche Geformtheit dieses politischen Werdens; sie vergisst nicht, das gerade sie das zu leisten hat, was die Geschichtwissenschaft mit ihren Mitteln nicht zu leisten im Stande ist: den Staat als geschichtliche Struktur und zwar als Funktion innerhalb der Totalität des konkreten geschichtlichgesellschaftlichen Gefüges zu erkennen. Unter dem Aspekt der Geschichtswissenschaft erscheint, um mit Hegel zu reden, das Werden als die Wahrheit des Seins. Unter dem Aspekt der struktur-theoretischen Staatslehre aber erscheint das Sein keineswegs etwa als die Wahrheit des Werdens. Mit einem solchen Urteil würden wir das sanktionieren, was die Staatslehre und Rechtswissenschaft von jeher und ganz besonders wieder in der letzten Generation getan hat: die Verabsolutierung des augenblicklichen Staates. Alle politischen Kategorien sind aber historisch wandelbar, selbst die Funktionen und erst recht die Struktur des gegenwärtigen Staates sind nichts weniger als geschichtstranszendent. Alle Geschichte ist ein einmaliges Geschehen in unumkehrbarer Stromrichtung und eine Staatsstruktur, die innerhalb einer bestimmten gesellschaftlichen Grundstruktur wirklich ist, muss eben deshalb prinzipiell als unmöglich angenommen werden innerhalb einer andern geschichtlichen Gesamtsituation’.

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This quotation makes it clear that Heller considers the internal structural principle of the State to be a ‘merely empirical’ historical phenomenon.
He did see that the historian must base his description of the history of a body politic on a structural concept of the latter. He also saw that only by means of a particular structure the multiplicity of human actions in particular situations are ordered into the peculiar unity of the totality of action of a State.
But he only conceives of this totality of actions in a positivistic sense as an ‘empirical form’ or ‘pattern’ of merely comparative stability, which is uninterruptedly carried along in the stream of history. He did not see that the positivized and realized structure of the State is only possible as a formation according to a supra-positive structural principle. Compare the following statement he makes: ‘Insofar as this structure has a certain duration, political theory has been given its “Gegenstand”; insofar as this structure or configuration of the State is uninterruptedly carried along in the stream of history and permanently, though hardly perceptibly, included in a process of change, this configuration cannot be thought as closed, but only as open. History flows through it. Therefore it is absolutely necessary for political theory to know the process of becoming in what has come about, the developmental tendencies of the structure of the State’¹.

1 Op. cit. p. 51: ‘Indem diese Struktur eine Dauer hat, ist der Staatslehre allererst ihr Gegenstand gegeben; sofern aber auch diese Staatsstruktur oder Gestalt des Staates ununterbrochen im Fluss der Geschichte steht und in dauernder, wenn auch oft kaum merklicher Wandlung begriffen ist, kann diese Gestalt nicht geschlossen gedacht werden, sondern nur offen; die Geschichte geht durch sie hindurch. Deshalb ist es unumgänglich, dass die Staatslehre das Werdende im Gewordenen, die Entwicklungstendenzen der Staatsstruktur erkennt’.

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In perfect agreement with this historicistic structural concept is the moderately historicist normative idea of the State, without which in Heller's opinion a genuine theory of the body politic cannot be set forth.

The following quotation shows the moderately historicistic character of this idea¹:
‘Theory no more than practice should deduce its leading ideas from the pure mind, both should derive them from the psychological-pragmatic motivations of living men. It is of little importance in this connection whether one believes one can “calculate” the future tendencies of politics from the dialectical tensions of the present - as Marxists do - or whether one holds up a future ideal to the present, as an imperative demand which is more or less in agreement with particular tendencies. For in either case the dialectician's view of the future is an evaluating orientation (transcending reality and consequently the present) in the sense intended by Mannheim; hence a Utopia², which he cannot give up... Only by assuming that particular developmental tendencies are valid, does he find a leading idea enabling him to orient himself, to make a selection, and to give an interpretation...These political decisions do certainly not imply that the formative will of the political present is morally right, aesthetically beautiful, or valuable from the viewpoint of some general system of values. What they do imply is, that they consider these tendencies to be “the next stage in the history of the world”’³.
In my book De Crisis in de Humanistische Staatsleer, p. 83 ff., I showed that even the ‘moral-juridical principles’, which according to Heller alone can justify the State⁴, are not considered

1 A radically historicist view leaves no room for normative ideas.

2 Cf. Karl Mannheim, Ideologie und Utopie (1929), p. 169.

3 Op. cit. p. 56/7: ‘Die Theorie darf ihre leitenden Ideen ebensowenig wie die Praxis aus dem reinen Geist deduzieren; beide müssen sie den psychologisch-pragmatischen Motivationen lebendiger Menschen entnehmen. Ob man dabei des Glaubens ist die Zukunftstendenzen der Politik liessen sich - wie die Marxisten meinen - aus den dialektischen Spannungen der Gegenwart “berechnen”, oder ob man der Gegenwart in mehr oder weniger starker Uebereinstimmung mit bestimmten Tendenzen ein forderndes Zukunftsideal entgegenhält, macht in diesem Zusammenhang wenig aus, denn in jedem Fall ist auch die Zukunftsschau des theoretischen Dialektikers eine wertende, wirklichkeits-, also gegenwartstranszendente Orientierung, im Sinne Mannheims also eine “Utopie”, auf die er nicht verzichten kan... Nur dadurch, dass er bestimmte Entwicklungstendenzen als gültig setzt, findet er eine Leitidee, die ihm Orientierung, Auswahl und Interpretation ermöglicht... Dass das gestaltende Wollen der politischen Gegenwart moralisch gut, aesthetisch schön oder von einem sonstigen allgemeinen Werstsystem her wertvol erscheine, besagen diese politische Entscheidungen gewiss nicht; wohl aber, dass sie in diesen Tendenzen die nächtste Stufe der Weltgeschichte sehen.’

4 Op. cit. p. 216 ff.

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by him to be ‘supra-historical’. He is strongly influenced by the modern irrationalistic philosophy of life. In his opinion the ‘Entscheidung des Augenblicks’ (the decision of the moment) is superior to any principle, and he therefore rejects the idea of a supra-historical ‘ordre naturel’¹.

1 Die Souveränität, p. 176/7; these pages might just as well have been written by Emil Brunner.

The distinction between the State and the other organized communities according to the scholastic method of the search for a genus proximum and differentia specifica.

That Heller's dialectical structural concept of the State-institution is not really oriented to the internal structural principle of the latter, is at once evident when the distinction of the body politic from other human communities is at issue. This problem is crucial in every theory of societal relationships that starts with eliminating the structural principles given in the divine world-order.

For lack of an internal structural criterion Heller again has recourse to the external method of classification found in Aristotle's logic, viz. the method of determining the genus proximum and the differentia specifica. In our general theory of the modal law-spheres this method has been found to be insufficient, even to give account of the modal structures of reality².

‘Genus proximum of the State’, Heller writes, ‘is consequently the organization, the organized pattern of behaviour planned for the unity of decision and action. Its specific difference from all other organizations is the property of its sovereign command over a territory. This sovereignty and this relation to a territory, inherent in the State's power, give all the elements of its organization their specific character’³.

2 Heller indeed applies this method also to delimit his concept of law. Cf. op. cit. p. 183.

3 Op. cit. p. 237: ‘Genus proximum des Staates ist somit die Organisation, das zur Einheit der Entscheidung und Wirkung planmässig organisierte Handlungsgefüge. Differentia specifica allen andern Organisationen gegenüber ist seine Eigenschaft der souveränen Gebietsherrschaft. Durch die Souveränität und Gebietsbezogenheit der Staatsgewalt empfangen alle Elemente der Staatsorganisation ihren spezifischen Charakter’. In his book Die Souveränität, p. 81, the ‘genus proximum’ and ‘differentia specifica’ were slightly differently formulated: ‘Der Staat, nach einem Worte F.J. Stahl's die “realisierte Rechtsordnung”, ist das einheitliche Zusammenwirken von bestimmten menschlichen Akten, darin allen anderen menschlichen Verbänden gleich, von ihnen aber dadurch grundsätzlich geschieden, dass die ihn realisierenden Akten die Garantie des gesammten Zusammenwirkens auf diesem Gebiete darstellen’. [The State, according to a statement made by F.J. Stahl, the ‘realized legal order’, is the unified cooperation of definite human actions, and in this respect similar to all other human organized communities. But fundamentally dissimilar to all of them is that the actions realized in the State are the guarantee of the total cooperation in this domain.]. The purport of this formulation is the same, which, moreover, appears from the identification of ‘universality’ and ‘sovereignty’, op. cit. p. 110: ‘Staat heisst die auf einem bestimmten Gebiet universale, deshalb notwendig einzigartige und souveräne Entscheidungseinheit’. [State is the universal and, therefore, the necessarily unique and sovereign unity of decision in a certain territory.]

[p. 394]

This was the ‘specific characteristic’ by means of which already Gierke tried to distinguish the body politic from other societal relationships¹. Its vagueness is at once evident when we recall that the concepts ‘organization’ and ‘sovereign territorial power’ must exactly receive their internal delimitation of meaning from the eliminated structural principle of the State. Apart from this principle these notions remain perfectly multivocal ‘analogical concepts’, which cannot enrich our insight; let alone that the concept of sovereignty is heavily burdened by a State absolutist tradition.

1 Cf. Gierke, Die Grundbegriffe des Staatsrechts (1915) pp. 99 ff. and my Crisis in de Hum. Staatsleer, pp. 119 ff. on this point.

The problem of the relation between State and law in Heller's dialectical structural theory.

The fundamental insufficiency of Heller's structural concept is also evident in his attempt to conceive the relation between State and ‘law’ dialectically.

All individuality structures in the juridical relations are levelled by purposely (‘zweckmässigerweise’) reserving the term ‘law’ only for the order of such norms which have been formed and sanctioned by special organs of the State-organization². This makes it impossible for him to grasp the individuality structure of the internal constitutional law of the body politic. For modern times Heller does not recognize any other positive law except State-law. Explicitly he calls the State ‘the formal source of validity of all legal rules’ (p. 187). As regards modern Western society he denies the original competence of organized communities of a non-political nature to make their internal

2 Op. cit. p. 186/7.

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legal order, independent of the agreement of the State. He considers the relation between State and law only as an historical problem¹, quite in accordance with the historicistic viewpoint.

Neither the modal meaning-structure of law, nor the transcendental individuality-structure of the State are in the least taken into account. Positive law is supposed to develop ‘historically’ from an undifferentiated ‘convention’ because of the organization of legislative and administrative juridical organs for the formation of the legal order. In the period of developed economic social life with its increasing division of labour he holds the hierarchical State alone competent to organize a positive legal system². This view is entirely in accordance with Bodin's absolutistic theory of sovereignty, which Heller had already rehabilitated in his book Die Souveränität³.

1 Op. cit. p. 186: ‘Auch das Verhältnis von Staat und Recht lässt sich nur historisch begreifen und allen Behauptungen über dieses Verhältnis, welche mit dem Anspruch geschichtstranszendenter Allgemeingültigkeit auftreten, muss von vornherein (italics are mine) mit Misstrauen begegnet werden’. [The relation of the State to law, too, can only be understood historically, and we must in advance suspect any views of this relation which claim a universal validity transcending history.] This is a clear and unmistakable formulation of Heller's historicistic prejudice.

2 Op. cit. p. 186: ‘Im Zeitalter der entwickelten Verkehrswirtschaft hat nur die staatliche Hierarchie die Möglichkeit, eine entsprechend funktionierende Normordnung zu organisieren. Bis dahin war sicherlich jede organisierte Gemeinschaft mehr oder weniger zur Rechtserzeugung befähigt, wie kraft des Faust- und Fehderechts fast jeder zur Rechtsdurchsetzung berufen war. Wollten wir uns zum Zwecke der Bestimmung des Rechtsbegriffs nicht daran orientieren was ist, sondern daran, “was einstens war und was vielleicht wieder einmal sein wird”, so müssen wir allerdings erklären, dass nicht nur der Staat, sondern auch die Kirchen, Territorien, Geburtsstände, Städte, Zünfte und Berüfsstände, kurz alle organisierten Verbänden Recht zu erzeugen und zu sichern im Stande sind’. [In the age of developed social economy only the hierarchy of the State is able to organize a correspondingly functioning normative order. Up till then certainly every organized community was more or less competent to create law, just as in virtue of club law and the law of the vendetta almost everybody was called upon to enforce the law. If for the purpose of determining the concept of law we do not want to orient ourselves to that which is, but to that which ‘was once and may be again’, then we must at all events declare that not only the State but also the Churches, territorial units, nobility, cities, guilds and vocational classes, in a word all organized communities are able to create and to guarantee law.]

3 Cf. Die Souveränität, p. 57, where we read: ‘dass für die juristische Betrachtung des heutigen Staates die Positivität der ihm eingeordneten Verbandssatzungen abgeleitet erscheint von der Positivität der staatlichen Rechtsordnung’. [for the juridical view of the present State the positivity of the legal rules of organized communities integrated into the body politic proves to be derived from the positivity of the legal order of the State.]

[p. 396]

Thus the problem of the relation between State and law is posited in a levelling way as that of the relation between State and positive law in general (‘überhaupt’). Its solution is found by applying the dialectical method in an extremely simple manner, so that the juridical norm (‘das rechtliche Sollen’) is considered to be indissolubly bound up with the human volition (‘das menschliche Wollen’) of the legislator. Heller conceives the will of the State explicitly as a subjective psychical act (p. 189), which gives rise to a dialectical, i.e. an intrinsically antinomic concept of law. For here the modal boundaries between the juridical and the psychical aspect are theoretically eradicated¹. It is simply impossible to reduce the law-forming will of the legislator to a complex of psychical act-functions.

The concept of law here is used in the sense of a pseudo-concept of function², without in the least taking into account the internal structural diversity within the juridical law-sphere as a modal aspect of reality. As Heller's concept of ‘structure’ of the State does not really approach its individuality structure, it cannot give us an insight into the internal expression of the latter in the different modal aspects of this societal institution. Modern historicism undermines Heller's entire conception of the body politic, and prevents him from liberating himself from the relativistic view of the latter's structure. For all these reasons the conclusion is inevitable that in principle Heller's interesting theory has not at all overcome the crisis in modern theory of the State.

1 Cf. Vol. II, part I, pp. 37 ff.

2 Pseudo-, because the modal, really functional concept of law cannot be oriented to the State as an individuality structure of human societal life.

The crisis in the practical political life of modern parliamentary democracies and the new irrationalistic and universalistic idea of the totalitarian State.

The entire crisis in the theory of the State, culminating in a ‘political theory without a State-idea’, was closely connected with the crisis in the practice of western political life and the terrible economical crisis between the two world-wars. It was connected with the symptoms of dissolution that had assumed

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such alarming proportions in several parliamentary democracies; with the corruption and the subjection of politics to the interests of particular groups and classes. These facts hardly need separate mention. The recent fascist and national socialist reaction, however, which turned against these symptoms of dissolution in politics, and transformed the central and southern European States into authoritarian ‘Führerstaaten’, meant indeed a barbarian ‘subversion of all values’ implied in the Christian and Humanist traditions of Western culture. This reaction found its philosophical background in the modern irrationalistic philosophy of life, which substituted for the ideology of natural law, founded in the Humanistic personality ideal, the vital political mythology and the technical means of mass-psychology. The new idea of the totalitarian or integral State was no longer rooted in the belief in an idealistic metaphysical rational order, but appealed to the vital instincts of the masses. It really aimed at subjecting all the internal spheres of the non-political societal relationships to the ‘totalitarian State’. Such an attempt was not new in the history of the world. But it acquired a really demonic character by its refined methods of mass suggestion, its unscrupulous sacrificing of the individual personality, and its appeal to the spiritually uprooted mass-man.

The dialectical basic problem in the development of the political theories oriented to the immanence-standpoint.

Since the rise of theoretical reflection on the ‘problem of the State’ in Greek philosophy the development of the seemingly diametrically opposed political theories, oriented to the immanence-standpoint, has always centred around one dialectical basic problem. This problem may have been posited from different religious starting-points and in different historical situations, but in the foreground has always been the question about the relation between ‘right and might’ in the structure of the State institution. And on the immanence-standpoint this problem necessarily assumes the form of a dialectical tension between these two factors, because this standpoint makes the insight into the plastic horizon of the individuality-structures impossible.

This dialectical tension on the one hand manifests itself in the sharp mutual antagonism between the various theories, in the fundamental contrast between the idea of the law-State and that of the absolutist power-State. On the other hand, if the

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attempt was made to reconcile the two factors in one and the same theory, the dialectical tension became evident within such a theory itself.

As early as in ancient Greece the Sophist Kallikles, starting from the Greek matter-motive, defended a naturalistic individualistic idea of the political ruler which might be called a prelude to Nietzsche's idea of the ‘Herrenmensch’ (super-man). In essence this was the justification of subjecting the weak to a despot, who is bound neither to justice nor to morality. With almost prophetic indignation Plato opposed to this his idea of the State ruled by justice, in which reigns the idea of τά ἑαυτοῦ πϱάττειν, in its concentric direction to the divine Idea of the Good. Nevertheless, Plato has never overcome the totalitarian view of the body politic: no more has Aristotle. This was due to the fact that their idea of political justice was oriented to the Greek form-motive, which implied a religious absolutization of the cultural aspect. For the modal meaning-nucleus of the latter is power. The result was that the idea of political justice oriented to this form-motive lacked any material limitation of the competence of the city-State in its relation to the non-political societal spheres. In this way there remained a dialectical tension between the idea of justice and the totalitarian State idea, which in principle conceives the body politic as a power-State.

The polar contrast between might and right in the State has also dominated the entire Humanistic political theory from the times of the conflict between the abstract normative law of nature and reason, and the naturalist theory of ‘Staatsräson’¹, until the most recent antithesis between the individualistic, democratic law-State, and the universalistic authoritarian power-State. This conflict was ruled by the dialectical basic motive of nature and freedom, opposing the mathematical or the cultural science-ideal respectively to the personality-ideal of Humanism.

As long as the classical Humanistic science-ideal prevailed, the theory of natural law accepted Bodin's notion of sovereignty, which was devised to construe the State as the supreme power-organization ruling human society in its totality. As soon as, on the other hand, the personality-ideal with its Humanist freedom-

1 Compare the ample explanation of the tension between the idea of ‘Staatsräson’ and that of natural law in my In den Strijd om een Christelijke Staatkunde, I, XV (in the quarterly Antirevolutionaire Staatkunde, Year I, 127, pp. 142 ff.).

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motive acquired the precedence, the conception of inalienable human rights was opposed to the sovereign power of the State, without the latter being denied. Generally speaking, the adherents of the idea of the power-State tried to save the appearance of the law-State, although the Macchiavellian theory of the raison d'état was openly explained in different realistic reflections on the ‘necessities of politics’. Even the fascist and national socialist theories did not wish to give up the ideology of the law-State but tried to adapt it to their totalitarian conception of the power-State. They introduced a deceitful ‘idea of the material law-State’, which was opposed to the ‘demo-liberal ideology of the rule of law’.

The absolutist idea of the power-State may then be conceived in a naturalistic positivistic and individualistic way, as well as in an idealistic and universalistic sense (Hegel, and his adherents). And the idea of the law-State also allows of various conceptions.

Even Gierke has not overcome this internal dialectical tension between ‘might and right’ in his theory of the body politic, although in other respects he has done great service to the theory of the organized communities. Though being an adherent of the historical school that originated from German romantic idealism, he later on also fully appreciated what the theories of natural and rational law had really done for the development of the legal aspect of Western societal life. He was on principle an opponent of the formalistic positivism in constitutional legal theory that came to the fore in the German school of Laband and Gerber. And he was unwilling to sacrifice the idea of the law-State, in its material sense, to the ‘historical reality’ of the State as a ‘sovereign territorial organization of power’. Nevertheless, he shut off the reality of body politic in its historical function of ‘organized power’. After having delimited these two from each other antithetically, he had then only an external dialectical connection left between the reality of the State and the legal order. Thus, like Rudolph Smend of late, he viewed the life of the body politic and that of law as ‘two independent specifically different aspects of communal life’¹. He circumscribed this contrast as follows: ‘The former manifests itself in the sovereign power to realize the desired common purposes, and culminates

1 ‘zwei selbständige und spezifisch verschiedene Seiten des Gemeinlebens’.

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in political action. The latter reveals itself in the marking out of spheres of action for the volitions bound by it, and culminates in legal knowledge (knowledge of what is in accordance with the requirements of law)’¹.

True, he says that State and law are interdependent, although they are entirely different ‘aspects of community life’. They can find their real fulness of life only if they mutually support one another. But State and law are contrasted here as equivalent and comparable ‘aspects’ of human cultural society. This is due to the view of the Historical School that the State is nothing but the historical form of political organization of a national community. Nevertheless this historical-political ‘aspect’ is identified with the full reality of the organized community which is called a State! This shows that even such a profound thinker as Otto Gierke lacked the insight into the individuality structures of human society, and that into the relation of these structures to the modal aspects of reality. And this in spite of the fact that it was especially he who had laid full emphasis on the significance of the structures of the societal organizations.

1 Grundbegriffe des Staatsrechts (1915) p. 105: ‘Jenes manifestiert sich in der machtvollen Durchführung gewollter Gemeinzwecke und kulminiert in der politischen That, dieses offenbart sich in der Absteckung von Handlungssphären für die von ihm gebundenen Willen und gipfelt im rechtlichen Erkennen (“für Recht erkennen”)’.
In the same way Smend (Verfassung und Verfassungsrecht, 1928, p. 98), characterizes State and law as two ‘indissolubly cohering, but nevertheless self-contained provinces of spiritual life, serving to realize two different particular values’. [‘zwar untrennbar verbundenen, aber doch je in sich geschlossenen, der Verwirklichung je einer besonderen Wertidee dienende Provinzen des geistigen Lebens’].

The dialectical tension between the juridical and the sociological conception of the State. The dualistic theory of the body politic.

Since the rise of a formalistic juridical method in the science of constitutional law (the School of Laband and Gerber, represented in the Netherlands by Buys), the internally contradictory dualism of ‘right and might’ also led to a dualistic theory of the State, viz. a sociological so-called ‘empirical’, and a normative juridical theory, as they were set forth in Jellinek's Allgemeine Staatslehre (1st ed. 1900), without any successful attempt at an internal reconciliation.

And finally it led to a fierce antagonism between these two,

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when the naturalistically minded sociology began to deride the ‘scholasticism of the jurists’ and, conversely, the ‘normological’ school of Kelsen caricaturized the efforts of the naturalistic sociologists to conceive the State in a manner different from the ‘purely juridical’ way. Even Siegfried Marck, though oriented to Litt's dialectical sociology, frankly capitulated to this dualism. According to him, political theory as ‘an empirical science’ (Wirklichkeitswissenschaft), as a ‘sociology’ dealing with ‘the totality of the State in its empirical configuration’, always remains caught in the dualism of ‘sollen’ and ‘sein’. Only a Hegelian dialectical metaphysics would be able to develop a normative idea of the body politic which would be able to give a supposed synthesis transcending the fundamental antithesis between a juridical and a sociological conception of the State¹. But Marck explicitly rejects this metaphysics.

In contrast to this view we have established that outside of its supra-modal individuality structure the empirical State cannot exist at all. There can simply be no question of juridical and other aspects of the body politic, if we do not relate them consciously or unconsciously to this normative structural principle. But Marck could not accept this state of affairs on his dialectical phenomenological standpoint. Consequently, like other dualists, he could find no way out of the crisis in the theory of the State.

1 Substanzbegriff und Funktionsbegriff in der Rechtsphilosophie (1925) pp. 150 ff.

The primary task of a Christian theory of the State. Rejection of the dialectical view of Emil Brunner.

In contrast with the entire dialectical development of the theories of the State rooted in the immanence-standpoint, Christian theory has to disclose the internal structural principle of the body politic as it is found in the divine world-order. In itself this task is of a theoretical philosophical character, and seems to have no bearing on the burning questions of our time about the State and ‘society’. The elaborate and penetrating analysis of the transcendental structures of reality demanded by the philosophy of the cosmonomic Idea does not belong to the kind of literature that is in vogue among present-day politicians and sociologists.

But I venture the statement that there is nothing of which our

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time is so much in need with respect to the State and society as an insight into the constant transcendental structural principles of societal relationships. They have not been devised by man's reason, but are anchored in the divine wisdom exhibited in the world order. The Christian theory of the State has up to now been unable to undertake its task with all its powers. Again and again it has formed a synthesis with immanence philosophy and thereby blunted the point of its Christian basic thoughts, so that after their elaboration the result was often their very opposite.

In advance we must warn against the recent error propagated under the influence of the ‘dialectical theology’ to the effect that a Christian theory of the State is impossible on a Reformed Christian standpoint. In the structure of the State the factor of constraining power is held to be an intrinsically demonic and radically sinful element. As such it is supposed to remain necessarily caught in a dialectical tension with the Christian commandment of love and the idea of true communion.

Especially Emil Brunner in his repeatedly quoted book Das Gebot und die Ordnungen (1932) defends this view. He considers it to be a necessary consequence of the essential difference between Roman Catholicism and Protestantism that there is a Roman Catholic but not a really Protestant philosophy of law and of the State. Wherever Protestantism tries to project such a philosophy it has already been affected internally by the Roman Catholic leaven¹.

Roman Catholicism bases its philosophy of the State on the Aristotelian natural law which is not of Christian but of pagan origin. Reformed Christianity cannot recognize any form of natural law and has to accept the State in the latter's peculiar dialectical structure. In it there is an irreconcilable tension between three factors, viz. an element of the order of creation in the moment of communion, a constraining legal order related to sin, and an in no way justifiable system of power which is ‘merely factual, unjust, hungry for power, and half demonic’². The fundamental nature (‘Grundwesen’) of the State is considered not to be justice, but power³.

1 Das Gebot und die Ordnungen (1932) pp. 647 ff.

2 Op. cit. p. 432 ‘schlechthin faktisches, ungerechtes, machtshungriges, halbdämonisches Machtswesen’.

3 Op. cit. p. 433.

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This dialectical enigmatic formation (‘Rätselgebilde’) is supposed to escape any univocal and finished theory, and ‘Christian theology’ does not have the task to propound a Christian theory of the State¹. For such a theory could not reconcile these dialectical contrasts in the structure of the body politic. Christian theology only has to call attention to the fact that the ‘riddle of the State’ points back to another ‘riddle’, which is as little to be solved in theory, viz. the riddle of creation and the fall into sin within man².

It is remarkable here that on his Christian standpoint Brunner necessarily relapses into a synthesis with the State-theories of the immanence standpoint by in principle accepting the dialectical basic problem of the latter.

Erroneously he thinks he can reduce this basic problem to the ‘basic antithesis’ in the Christian view between creation and fall.

At the back of this synthetic standpoint emerges the false contrast between nature and grace which already at an early period infected Christian thought. In Brunner this contrast assumes the irrationalistic form of a dialectical tension between the ‘commandment of love of the moment’ and the ‘law as such’³.

We must observe here that a really Christian view of the State, because of its very starting from the Biblical basic motive of creation, fall into sin and redemption, should radically reject Brunner's ‘dialectical basic problem’ derived from the immanence-standpoint. The internal structural principle of the State as a supra-arbitrary institution can never be internally antinomic; neither can the function of power in this structure be called ‘semi-demonic’ and ‘unjustifiable in any sense’ on our standpoint. Brunner commits the serious error of confusing the factor of power in the structure of the body politic with the subjective way in which States in the sinful world can abuse their power. But when Brunner writes: ‘There has never been and there will never be a Christian State’⁴, the question must be asked: Is the word ‘Christian’ intended here in the sense

1 But nobody who is aware of the limits of ‘theology’ will entrust this task to it.

2 Op. cit. p. 430.

3 Cf. my study De Wetsbeschouwing in Brunner's Boek ‘Das Gebot und die Ordnungen’ (A.R. Staatkunde, quaterly review, 1935).

4 Op. cit. p. 449.

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of ‘without sin’? If so, can this statement then not be applied with equal justice to all the other types of societal relationships, inclusive of the Church, in their subjective manifestations? Then the thesis loses any special meaning. Brunner on the one hand derives the power of the body politic from the divine will. But on the other hand he writes: ‘The State is a secular ordering; it is not sacred’. This statement shows a serious lack of distinction between the divine structural law and the subjective manifestation of the State (which is subjected to this law) in sinful reality. Brunner characterizes the supposed essence of the body politic as power, as an ‘irrational product of history’, which can only be ‘understood’ by faith (not ‘comprehended’ by the intellect) by thinking of the ‘hidden God’ in all history. This merely proves how much this author's conception of power has been infected by modern irrationalism. His conception of law has chiefly been derived from neo-Kantian positivism, and his ‘idea of community’ from irrationalistic phenomenology¹.

It is a matter of serious doubt if the task of the Christian should be to lend the Biblical Christian background of creation and sin to this dialectical ‘mixtum compositum’ of Humanistic conceptions.

That the State-institution cannot be understood from creation without taking account of the fall into sin, must immediately be granted to Brunner. We shall return to this point in our analysis of the structural principle of this institution. But when Brunner tries to combine this really Biblical-Christian insight with a Humanistic-irrationalistic view of reality, the result must be a complete confusion. This should be clear from all that we have said about such attempts at synthesis.

1 Cf. my above mentioned treatise on Brunner's view of the ‘Ordnungen’.

§ 2 - Organization as the ‘form’ of all historically founded communities and the typical foundational function of the state.

If the State, as a differentiated societal institution, really has a typical historical foundation, its historical ‘form’ as such must play a special foundational rôle in its radical type.

Naturally ‘form’ is to be understood here in an internal structural-typical sense, not in the sense of a variable, only

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more of less durable result of human formation. In our discussion of the ‘social forms’ we have seen that the latter, as forms of realization of the societal structural principles, are necessarily of a phenotypical character and are real nodal points of enkaptic interlacements. In the present context, however, we consider the typical internal historical form of the State, and such only in its pre-positive, internal structural function, as the foundational structural aspect of the State's radical type. As such it does not have any factual duration but is a structural condition of any possible body politic, irrespective of its variable societal form. A typically historically founded community like the State implies such a typical historical form as its internal structural basis. And this same statement must be valid for all radical types of historically founded communities. This explains the special importance of ‘organization’ as the form of their unity of will and action. Their internal unity in multiplicity is not typically founded in a pre-logical aspect of reality. Therefore their structural principle requires an historical organization, a formation, as the original foundation of the internal unity of the societal relationship.

For this reason it is incorrect to conceive ‘organization’ as a ‘universal property’ of all temporal communities. In a family we have also discovered the essential structure of a community. But the latter here lacks a form of organization as its typical foundation. The relation between parents and children is that of the bearers of authority to those who are subjected to this authoritative office. This relation is ‘founded in nature’ and as such is not in need of organization.

In itself the concept ‘organization’ is not at all a real structural concept of individuality. In Heller it becomes a vague, undefined, ‘general concept’, a ‘genus proximum’ in the traditional sense. Before Heller it had been deprived of all internal structural meaning in Plenge's theory of organization¹, which Heller himself admitted to be ‘much too general’ (‘all zu allgemein’).

1 Cf. Plenge's book Drei Vorlesungen über Organisationslehre (1919).

Organization and Organism.

The origin of the term in its prevailing, structurally undefined sense betrays a certain polemical commitment in the conflict between two tendencies in the Humanistic theories of human

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communities. For this word assumed a certain polemical connotation in its contrast with the term ‘organism’, by means of which the romantic organological philosophy of human society had signified its peculiar irrationalistic metaphysical conception of community¹.

In the second part of his Naturrecht (1798) Fichte on purpose replaced the Schellingian term ‘organism’ by ‘organization’. Thus he opposed the entire organological view of the State as a supra-individual being which historically develops from a natural community after the pattern of the growth of a natural organism (naturwüchsig), in contradistinction to all revolutionary artificial work.

After this, under the influence of Marx, the concept organization was taken in the sense of an artificial, so-called ‘mechanistic’ social whole. This was a conception which in the nature of the case could not contribute anything to clarifying our insight into the structure of the organized societal relationships. Nevertheless, the sharp distinction between ‘organization’ and ‘organism’ was a gain, insofar as the fundamental difference was realized between the so-called ‘natural’ and the historically founded communities.

For even Gierke conceived all organized communities indiscriminately as ‘personal spiritual organisms’. Under the influence of Schelling's organology he wrote: ‘The individual State is not the free creation of individual men but the necessary product of the social powers working in the individuals. Originally States arise and grow without any cooperation of a conscious creative will, as a natural product of the unconscious social impulse’².

1 Cf. Waldecker, Allgemeine Staatslehre (1927) p. 86.

2 Die Grundbegriffe des Staatsrechts, p. 97: ‘Der einzelne Staat ist keine freie Schöpfung des Individuums, sondern das notwendige Produkt der in den Individuen sich bethätigenden gesellschaftlichen Kräfte. Ursprünglich werden und wachsen die Staaten ohne jede Mitwirkung eines bewusst schaffenden Willens, ein naturwüchsiges Erzeugnis des unbewussten(!) Gesellschaftstriebes’.

Organization and ordering.

In ‘organization’ the present-day positivistic sociology generally seeks the unifying principle of an organized community. This concept is fairly generally identified with that of ‘social ordering’ by the positivistic tendencies. They mean a certain

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regularity in social behaviour brought about by particular psychical representations of convention or norms. Jurists preferably understand the term in a functional juridical sense¹. There is a necessary correspondence between this functional psychological or juridical conception of ‘organization’ and the individualistic and naturalist view of reality which is considered to be the only empirical basis of the supposedly fictitious unity of an organized community.

Heller considers ‘organization’ to be the real structural unity of the State and in principle rejects the individualistic view of societal relations. It is therefore understandable that he sharply opposes the identification of organization and ordering. Starting from the socio-psychological concept of ‘ordering’, as the factual regularity of social behaviour², he observes that in this sense every human societal relationship is ‘ordered’. But such an ‘ordering’ in itself implies no more than the possibility of ‘unified’ (‘einheitliche’) collective cooperation. ‘However, from ordering to organization, from the unity of social behaviour to the comparative durable unity of action it is still a far cry’³.

Organization is a collective unity of action to him and is only constituted by the ‘category of collective ability to decide and to act’ (‘Kategorie der kollektiven Entscheidungs- und Aktionsfähigkeit’). A unity of collective activity in the multiplicity of individual centres of activity is only possible when the actions of the many have been caused to cooperate by the ‘organ’ (or ‘the organs’) of the organization according to a conscious, carefully considered plan. Every organization, therefore, needs at least one ‘organ’ and when it has assumed certain proportions it also requires a rationally formed ‘ordering’.

1 Cf. among many others Affolter Arch. f. öffentl. R. 20, 374 ff., Carré de Malberg, Contribution à la théorie générale de l'Etat II nr. 373, Kelsen, Allgemeine Staatslehre (1925) p. 268; H.J. Wolff, Organschaft und Juristische Person Vol. I, Juristische Person und Staatsperson (1933) pp. 164 ff.

2 Allgemeine Staatslehre (1934) p. 86: ‘Sowohl die bloss tatsächlich regelmässigen wie die auch regelgeforderten’ (i.e. those that have been caused by the feeling or the representation of what ought to be) ‘Regelmässigkeiten des gesellschaftlichen Verhaltens fassen wir also zusammen unter dem Begriff der gesellschaftlichen Ordnung’. [Both the merely factual regularity in social behaviour and the regularities which are demanded by norms we include in the concept of social ordering.]

3 Op. cit. p. 88: ‘Von der Ordnung zur Organisation, von der Einheitlichkeit des gesellschaftlichen Verhaltens bis zur relativ dauernden Einheit der Aktion ist aber noch ein grosser Schritt zu tun’.

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On account of its members and organs cooperating according to an ‘ordering’ and arriving at a ‘unitary result’, the real unity of the organization is brought about as the ‘unity of action’ (‘Wirkungseinheit’)¹.

1 Op. cit. p. 231.

The antithesis between ‘organization’ and ‘organism’ in Siegfried Marck and Fr. Darmstaedter.

Of late the concept ‘organization’ has assumed a special meaning in connection with Tönnies' distinction beween ‘Gesellschaft’ and ‘Gemeinschaft’². In this connection ‘organization’ is deemed to be characteristic of the associations formed by ‘Kürwille’ (arbitrary volition)), whereas a ‘Gemeinschaft’ is considered as a social ‘organism’, in which a ‘Wesenswille’ (natural volition) reveals itself. An organization is characterized by its rational aims, which are to be realized by organizational cooperation (‘Zweckrationalität’ in Max Weber's sense). An organism, on the other hand, is characterized by the irrational consciousness of a member's having grown into the whole³.

Fr. Darmstaedter gives a peculiar turn to this modern conception by relating the contrast between ‘organization’ and ‘organism’ to Kant's distinction between autonomy and heteronomy. He says: ‘An individual person joins an organization as something existing outside of himself, as an apparatus or an heteronomous mechanism imposed on him from outside, laying hold of the individual by means of duties imposed on him from outside and secured by force. An organism, on the other hand, has grown in the individual himself. It confronts him as a duty from outside only because he accepts it autonomically, because he knows he is a member of the organism, because he consciously becomes integrated into the organism’⁴.

2 Cf. Vol. III pp. 184 ff.

3 Cf. Siegried Marck, Substanzbegriff und Funktionsbegriff in der Rechtsphil. (Tübingen 1925, p. 99 ff.). More or less in the same sense: Stanislaus Dnistryanski, Zur Grundlegung des modernen Privatrechts in Jherings Jahrbücher f.d. Dogmatik des bürgerl. Rechts, Bnd. 43, Jena 1928 p. 1 ff.

4 Die Grenzen der Wirksamkeit des Rechtsstaates, Heidelberg, 1930), pp. 139 ff.: ‘In die Organisation fügt sich das Individuum ein als in einen ausserhalb seiner selbst vorhandenen, von aussen her ihm heteronom aufgelegten Apparat oder Mechanismus, der das Individuum in Form von äusserlich auferlegten, durch Zwang gesicherten Pflichten ergreift. Der Organismus dagegen ist gleichermassen im Individuum selbst gewachsen, er tritt dem Individuum nur darum von aussen als Pflicht entgegen, weil dieses ihn autonom billigt, weil es sich als Glied des Organismus weiss, weil es sich wissend dem Organismus eingliedert’.

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This distinction is then applied to the contrast between the law-State and the power-State. The former is considered to be preponderantly supported by ‘the willingness of the individual to be integrated into the whole’ whereby it is characterized as an organism, whereas the ‘power-State’ is nothing but a ‘mechanical organization’. This conception is very characteristic of the lack of insight into the internal structure of the State. It again rests on the fallacious way in which the problem of the relation between State and law has been posited. The State is considered as a self-contained ‘organization of power’ and dialectically brought into an external relation with an individualistically conceived legal order. This view has very little to do with Tönnies' conception of a ‘Gemeinschaft’ since it has been inspired by a liberalistic idea of liberty.

Darmstaedter considers both State and law to be a piece of ‘natural reality’ which must be related to the ‘values’ regulation of a community and governmental power, in order to become the ‘cultural objects(!) State and law’. This view is oriented to the South Western German school of neo-Kantians (Windelband, Rickert, Lask). The ‘natural reality’ that State and law are supposed to have in common is that they are ‘a multitude of people’(!): ‘This multitude of people is the only available reality for the State as well as for law, the total available reality to which the appropriate moment of value can be attached’¹. In other words, State and law only differ according to the ‘specific values’ that can be attached to a ‘multitude of people’ (as a ‘natural reality’).
Law in the sense of ‘value’ is then defined as a ‘regulation for a community by which certain behaviours of one individual towards another are commanded or prohibited’.
According to its ‘validity as a value’ the State, on the other hand, is characterized in such a way that it brings man into relation with the original power of the supreme magistrate, who ‘takes up his position outside of and beyond the human individual’².
Thus also Darmstaedter arrives at a sharp formulation of the dialectical basic antithesis operative in the entire Humanistic theory of the State, as an internal antinomy between ‘right and might’: ‘Behaviour corresponding with the axiological validity of law,

1 Op. cit. p. 119: ‘Diese Menschenmenge ist sowohl für das Recht wie für den Staat die einzige verfügbare Wirklichkeit, die gesamte, zu Gebote stehende Wirklichkeit, an welche sich das ihnen zugehörende Wertmoment knüpfen kann.’

2 Op. cit. p. 120: ‘ausserhalb und jenseits der einzelnen Menschen ihre Stelle hat.’

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and such that satisfies the axiological validity of the State, are mutually exclusive. The axiological validity of law demands from men a behaviour that excludes the axiological validity of the State, and vice versa. The value law and the value State are opposed as mutually exclusive and contradictory, as opposite values with regard to the same reality’¹. Both are reconciled when the State relinquishes its claim to its own absolute value and is prepared to do duty as a ‘Mittelwert’ (instrumental value) with regard to law as a ‘Selbstwert’ (value in itself)’.

I only mention this development of the concept ‘organization’ to show how little in itself it is able to account for the internal unity of the historically founded organized communities. The functionalistic attitude is in evidence wherever this notion is handled as a levelling ‘general concept’, apart from the internal individuality structures. Heller's ‘dialectical structural idea’ proved to labour under the same defect.

1 Op. cit. p. 121: ‘Das der Wertgeltung Recht entsprechende Verhalten und das der Wertgeltung Staat genügende Verhalten schliessen derart einander aus. Die Wertgeltung Recht fordert von dem Menschen ein die Geltung des Wertes Staat ausschliessendes Verhalten und umgekehrt. Der Wert Recht und der Wert Staat stehen als gegenseitig sich ausschliessende und verneinende, als Gegenwerte an der nämlichen Wirklichkeit einander gegenüber.’

The relation between organization and the structural principle.

The truth is that the word ‘organization’ must derive all its structural determination of meaning from the individuality-structure of an organized community.

This relation is reversed in the prevailing functionalistic tendencies, and the attempt is made to derive the internal unity of the State from the general concept ‘organization’. But this levelling way of thought makes it impossible to gain an insight into the internal structural principle of the body politic.

An organization of power as the foundational historical form of a radical type of communal structures only acquires its internal determination from its structural coherence with the typical leading function. For this reason we must emphatically reject the view that the internal structure of an organization can be conceived according to one and the same functional or dialectical ‘specific’ schema for all types of organized communities. It is immaterial whether this schema is functional-juridical, or socio-psychological or a dialectical synthesis of these two. The

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internal organization of a Church is not merely specifically but radically different from that of a State or that of a modern industrial enterprise. The insight into the internal structural principles is made impossible beforehand, if one tries to approach e.g., the ‘Church-organization’ from a functional juridical, or a psycho-sociological viewpoint, or from Heller's dialectical point of view.

If ‘organization’ is really related to the internal structure of an historically founded community, it can only be seemingly a genus proximum. As a ‘general concept’ which is supposed to refer to a genus proximum it is nothing but a multivocal word. When in our preliminary distinctions we introduced the term ‘organized communities’, we did not use it in this undefined sense. Rather we intended to indicate by it only a transcendental difference between the natural and the historically founded communities as to their typical structural foundation, a difference whose transcendental significance as a ‘social category’ will be explained later on. But since the term implies nothing with respect to the typical qualification of the organized communities, it can never signify an ultimate genus of the latter, which indeed is not to be found in the structural temporal horizon of our experience. For there are different (secondary) radical types of such communities notwithstanding the fact that all of them prove to be typically founded in the historical aspect. And we have seen that the radical types are the ultimate genera of the structures of individuality.

In order to find the radical type of the State, the obvious method is for us to concentrate on those two functions in the structure of the body politic whose mutual relation proved to be the dialectical basic problem in the theories rooted in the immanence-standpoint. We cannot possibly believe that in this dialectical basic problem the historical function of power and the juridical function would have been so constantly emphasized, if they did not really have the meaning of radical typical functions of the State-structure. And this supposition appears to be confirmed by the empirical data concerning the realization of the latter.

The empirical data concerning the State's character.

The radical typical and geno-typical structural principle of the body politic cannot be traced apart from its realization in the development of human society.

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In this respect we must establish that a real State-institution does not appear before the destruction of the political power concentrated in the primitive undifferentiated tribal and gentilitial organizations. There is a radical difference between the latter and a real body politic appearing from the undeniable fact that they are incompatible with one another. Wherever a real State arose, its first concern was the destruction of the tribal and gentilitial political power or, if the latter had already disappeared, the struggle against the undifferentiated political power-formations in which authoritative, and private proprietary relations were mixed with each other. Irrespective of its particular governmental form, the State-institution has always presented itself as a res publica, an institution of the public interest, in which political authority is considered a public office, not a private property.

In this respect there appears to be a fundamental and radical difference between a real body politic, and the ancient Asiatic empires, the Merovingian kingdom and the medieval feudal kingdoms, which lacked the republican character.

It is extremely confusing that the term republic is used to indicate a non-monarchical form of government. In common speech it is unavoidable that the same words have very different meanings. But in the general theory of the State this is indefensible. The erroneous opposition between republics and monarchies is here only caused by the fact that the rise of a real State-institution in Greece and Rome occurred in a non-monarchical form and our political terminology is of a Greco-Roman origin. In addition, the undifferentiated conception of political authority, as the personal property of the rulers, mostly maintained itself in monarchies. But these historical facts cannot justify a scientific use of the term republic in a sense which has nothing to do with its proper meaning. A real State with a monarchical form of government is by nature a monarchical republic. A kingdom like the Merovingian empire which was nothing but a res regia lacks the character of a real State-institution. The historicistic view, which levels out these radical differences and speaks of gentilitial, tribal and feudal ‘States’, may not be called ‘empirical’ since it ignores undeniable empirical states of affairs in order to carry through its historicist prejudice.

Even from a logical point of view this use of the concept State is indefensible since it is contradictory to subsume under one and the same notion characteristics which exclude one another

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in an analytical sense. It is true that the State belongs to a particular radical type of societal relationships which may also include organized communities of a different geno-type. But in this case the term State may not be applied to this radical type but only to a specific geno-type of the former.

The adherents of Max Weber's ideal-typical method will readily agree that their ideal-typical concept of the State is only applicable to the modern bodies politic. But this by no means implies an abandonment of the historicist prejudice concerning the changeable character of the State's inner nature. The geno-type State cannot be defined from an historical point of view only, since it is a real structure of individuality, which, as such, embraces the integral horizon of modal experiential aspects.

The typical foundational function of the State.

If we now try to trace the structural principle of individuality of the State from the empirical data mentioned above, it is in the first place necessary to devote our attention to the typical foundational function in this structure.

That this foundational function must be of a typical historical character cannot be doubted. For it appeared that the State-institution is based upon a typical concentration of power which has its historical condition in the destruction of the independent political power formations inherent in undifferentiated social organizations. But what type of individuality is revealed in this political organization of power proper to the State?

From our ample analysis of the modal structure of the historical aspect in the second Volume we know that power, in its nuclear modal sense, allows of widely different individuality types¹. The historical power of the Christian Church has an entirely different individuality structure from that of a modern or an ancient State, and the power of each of them is structurally entirely different from that of a modern large-scale industrial undertaking, or that of a scientific or of an aesthetic ‘school’, etc.

In an undifferentiated organized community different individuality-structures of historical power may be interlaced in one and the same organizational form, but the State, as such, has a differentiated structure. Therefore its internal power-formation can no longer display an undifferentiated structure. We must keep in mind that we are looking for the typical foundational

1 Cf. Vol. II, part I, pp. 196 ff.

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function of this societal institution which is the original substratum for the type of individuality of its leading or qualifying function. In whatever way we consider the matter, this foundational function of the geno-type ‘State’ can nowhere else be found but in an internal monopolistic organization of the power of the sword over a particular cultural area within territorial boundaries.

The reader should remember that this typical historical structural function may in no way be naturalistically misinterpreted. According to its modal meaning it is a normative structural function implying a task, a vocation which can be realized in a better or a worse way. There has never existed any State whose internal structure in the last instance was not based on organized armed power, at least claiming the ability to break any armed resistance on the part of private persons or organizations within its territory.

The myth of blood-relationship in the German national-socialistic ideology of the ‘third Empire’, and the typical foundational function in the structure of the State.

In the political mythology of German national-socialism it was suggested that the community of blood and soil was the real foundation of ‘the third Empire’. But even in this case the internal structure of the State was not supposed to have a typical biotic foundation in a common descent. The starting point of this view was the community of the German people as including the entire individual personality, all the special structural communities and relationships such as the State, the Church, industry, political party, youth organization, etc. These societal units were viewed as differentiations of the primary community of the people, although the State was finally considered to be its totalitarian political form of organization. Only for this ‘community of the people’ was postulated a ‘community of blood’ in the myth of the race.
This myth was not to be understood in the sense of a naturalistic racial theory. This must be evident to anyone who has realized that the background of this racial ideology was found in the irrationalist-historistic view of life and the world¹ entertained by German

1 A view of life and the world as such is not a theory. This is an important point in this context. Cf. Vol. I Prolegomena, pp. 156 ff. In his famous article in the Enciclopedia Italiana on the Dottrina fascista (1932), Mussolini made the following observation as to fascism as a view of life and the world: ‘To fascism the cosmos is not that material world in which man is led by a law of nature’, and: ‘Fascism is a mental attitude born out of the general reaction of our century to the superficial and materialistic positivism of the 19th century’. This could be taken over literally by German national socialism.

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national socialism¹. There was a reminiscense of irrationalistic Romanticism in the German national socialist ideology of the ‘pure racial community of blood of the German people’, though it was deprived of any Romantic idealism. It was connected with the old Germanic myth of a common descent claimed for all Germanic peoples. The mythology of Italian fascism, on the other hand, consciously fell back on the old idea of the eternal Roman empire². Therefore Italian fascism was State-minded³, whereas German national-socialism was folk-minded, an ideological difference on which the German nazists laid strong emphasis⁴.
If full justice to such myths is to be done, they should be interpreted from the irrationalist-historicistic spirit of the view of life and the world in the background. Their essential aim was to elevate the historically developed nationality (the ‘cultural race’, or the ‘national State’ respectively) to a ‘spiritual power’. This power should be actual and always again be actualized and assume all-absorbing validity in the conviction of the people⁵. The political myths also aimed at exorcizing powers that were alleged to be a menace to the deified nationality.
In the German national socialist theory of the State it was realized that the structure of the State, as such, cannot be derived from a national community as a ‘community of blood’. This is evident, for instance, from Walter Hamel's book Das Wesen des Staatsgebietes (1933), in which the State and the people are explicitly conceived to be connected in a dialectical tension. The State, as such, is historically

1 Thus Walter Hamel in his treatise cited below.

2 Cf. Mussolini's statement in his quoted article on the Dottrina fascista II, 13: ‘The fascist State is a will to power and dominion’ (una voluntà di potenza e d'emperio). It is the tradition of ancient Rome which is appealed to here. Cf. A. Menzel, Der Staatsgedanke des Faschismus (Leipzig und Wien, 1935) p. 61. Cf. also pp. 83 ff. op. cit.

3 Compare Mussolini's statement in the article quoted from the Enciclopedia Italiana: ‘It is not the nation that creates the State, as was asserted in the naturalistic doctrine of the 19th century. Rut the nation is created by the State which only gives the people the consciousness of its own moral unity, a will, and therefore its real existence’. The German national-socialist doctrine of the nation as ‘a community of blood’, as a ‘racial community’ was unconditionally rejected by Mussolini. Cf. Menzel op. cit. p. 74/5.

4 Cf., e.g., Walter Hamel: Volkseinheit und Nationalitätenstaat, in Zeitschr. f.d. ges. Staatswissenschaft, Bnd. 95, 4e Heft, (1935), p. 587.

5 Cf. Mussolini's pronouncement at Naples in October 1922: ‘We have created a myth; a myth is a belief, a noble enthusiasm; it need not be a reality; it is an impulse and a hope, faith and courage. Our myth is the nation, the great nation, which we want to make into a concrete reality.’ Cf. A. Menzel, op. cit. p. 15/6. Cf. also Giuliano Balbino: L'idea etica del fascismo (in Gerarchia 1932, XI, p. 949).

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founded in the sovereign control of a ‘political territory’ (‘politischen Raum’). This ‘Bodemgemeinschaft’ (community of territory) is explicitly qualified as the adversary of the people (‘Widersacher des Volkes’), which, however, always strives after a dialectical connection with the ‘community of blood’¹.

Of course, it is perfectly true that a State cannot maintain itself long if it is not rooted in the moral ‘conviction of the people’, at least of the ruling groups of such a people. The State will be short-lived if it is divided and torn by internal strife, or if it lacks sufficient economical means to assert its power. But all this only proves what we have pointed out from the beginning, viz. that the typical foundational function in the structure of the State is not self-sufficient. It does not imply that the State is not typically founded in the monopolistic organization of the power of the sword over a territorial cultural sphere.

1 Wesen des Staatsgebietes (1933) p. 231 ff. Cf. also his treatise cited above.

The fundamental error of considering all different forms of power intrinsically equivalent components of the power of the State.

For a real insight into the individuality structure of the State it is essential to guard against the view which emphasizes the all-sidedness of political power and treats all its components alike. The fallacy of this opinion does not lie in the recognition that in a way State-power is all-sided. For as regards its historical aspect, the State is not merely the organized power of the sword over a particular territory. If the State did not have at its disposal typical economical, moral, pisteutic and other forms of power², it would even be impossible to form a military organization. But this is not the point at issue. None of the other forms of power is in itself typical of the State. The monopolistic organization of the power of the sword is the only typical form which is not found as a foundational function in any of the other differentiated societal structures. The other forms of power, insofar as they are really internal forms of State-power, are themselves only intelligible from the structural principle of the body politic, which implies a monopolistic military organization as

2 These other forms of power are anticipatory forms of historical power, enclosed by the modal structure of the historical law-sphere, and having no original economic, moral, or faith modality. Cf. Vol. II, pp. 70-71.

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its typical foundational function. They may also belong to the variability-types of the State, which originate from enkaptic interweavings with other societal structures.

To give an example: if there are powerful industries, large-scale agricultural undertakings, world-wide shipping organizations, etc., within its territory, the power of the State is closely bound up with the prosperity of these non-political organizations. But this does not mean that the economic forms of power of these organizations, which in modern times are for a good deal of an international character, are internal constituents of the power of the State.

There may be an open antagonism between the power of the State and that of industry or commerce, if the latter abuse their means for political aims contrary to ‘national interests’. A State whose organized military power is weak will never be a powerful State, though having large economic means of power, a very rich soil, a flourishing science and art within its territory. If the levelling schema of the whole and its parts is applied to the relation between the power of the State and the other structures of power within its territory, the resulting conclusions will always be in conflict with reality. They misinterpret the individuality-structures of reality. On this error is based the mythological character of the idea of the totalitarian State. No matter how this idea is elaborated, it always implies that all the other individuality-structures of this power will retain their own essential character when they are made into internal constituents of the State's power. But all forms of power that really become internal elements of the power of the body politic must necessarily assume the internal individuality-structure of the latter. We have discovered that all mythology is a false interpretation of God's revelation in creaturely meaning. So also this political mythology rests on a false deification of the creaturely expression of God's omnipotence in the meaning-structure of the State's power.

The original character of the individuality type of the foundational function. The seeming antinomy in the relation between foundational and leading function of the State.

As the foundational function of the body politic is not merely modal, but really an internal structural function, it must be

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studied in its indissoluble coherence with the leading function of this societal institution.

The structural principle of the whole must express itself in each of its modal aspects. The circumscription of the foundational function of the State as the organized monopolistic power of the sword over a certain territorial cultural area, is consequently not wholly satisfactory, because the full structural principle of the institution is not yet expressed in it. But theoretical analysis must necessarily proceed in a successive meaning-synthesis in order to elucidate the internal structure of a societal relationship. The initial theoretic separation of the two radical functions which internally hang indissolubly together, is inescapable in this procedure.

It will be useful once again to give an account of the exact relation between the individuality type of the leading and the foundational function in the structure of an organized community. Our thesis is that the monopolistic organization of military power within a particular territorial cultural area is the foundation of the individuality type of the leading function of the body politic. At the same time, however, we state that this foundational function can only be conceived in its indissoluble coherence with the leading function, i.e. that the historical function is apparently only a real structural one insofar as its meaning is opened and anticipatory. At first sight these two statements seem to be contradictory. There seems to be an inevitable antinomy in the fact that the differentiated, historically founded communities have a foundational structural function whose type of individuality must necessarily be of an anticipatory character. For the latter state of affairs apparently excludes the original or nuclear character of this type of individuality. But if the foundational structural function has no original type of individuality, its foundational character is thereby annihilated. And then the internal contradiction would have been admitted. This antinomy seems to be inevitable especially in the case of the differentiated societal relationships with a typical historical foundation. The reason is that the entire process of differentiation in the societal structures can only be brought about in the anticipatory direction of time.

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The solution of this seeming antinomy. The anticipatory character of the foundational function does not affect its original type of individuality.

The solution of this seeming antinomy was already found in an earlier context of our enquiry when we investigated the structural relation between the foundational and the leading function of a geno-typical individuality-structure in general¹. It appeared that this relation is founded in the necessary correlation between the foundational and the anticipatory direction of the universal order of time in the opening-process of the foundational function.

The anticipatory character of the foundational function does not affect its original or nuclear type of individuality. For the latter is only to be found in the foundational direction of time. The disclosure of its anticipatory moments by its structural subordination to the leading function can only deepen the individuality type of the foundational function, it cannot abolish its foundational character. In other words, this individuality-type as such does not belong to the anticipatory types which we have formerly distinguished from the nuclear and the retrocipatory types. The differentiated monopolistic organization of military power within a territorial cultural area can indeed only be brought about in the anticipatory direction of time. The historical vocational power acquired in such an organization points beyond itself to the leading function of the structural principle of the State. But we shall show that this leading function lacks a nuclear type of individuality. In this respect there is consequently no difference between the State and the natural communities. In both cases the structural disclosure of the foundational function in the anticipatory direction of time presupposes the original type of individuality of this function. Anticipatory types, on the other hand, which lack this original character are only constituted in the anticipatory direction of time. It is therefore essential to distinguish between the anticipatory individuality-types of an un-original character and the original individuality-types with an anticipatory opened meaning-structure.

1 Cf. Vol. III, pp. 91 ff.

The invariable character of the foundational function in the structure of the State.

The original character of the individuality-type implied in the

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foundational function of the State has thus been established. We will nog engage in a more detailed analysis of the monopolistic organization of the power of the sword over a territorial cultural area, as the typical foundational function in the structure of the body politic. In its transcendental character this foundational function cannot be eliminated from the structural principle which makes all variable real life of the State only possible and is itself invariable, constant, in the cosmic order of time. No ‘idealistic’ theory has been able to reason away this structural foundation of every real State. The ‘metaphysical essence’ of the body politic could be sought in the ‘idea of justice’, or in the idea of a perfect community, but the basic function of the historical power of the body politic could not be ignored consistently.

This structural foundation is essential in every positive historical form in which the State has manifested itself in the course of time: in the Greek polis and in the Roman world-empire, as well as in the Carolingian State and the Italian city-States of Renaissance times; in the absolute French monarchy that developed under the ‘ançien régime’ after the annihilation of the political power of the ‘estates’, as well as in the constitutional State after the French Revolution; in the modern parliamentary democracies, as well as in the recent form of the totalitarian dictatorial States. It is quite true that the foundational military organization of power may have been weakened and endangered by military organizations of certain groups or parties within the State's territory. This may even justify the question whether in such a condition we had not better speak of a revolutionary chaos instead of a real body politic. It is also possible that a young State has not yet completely succeeded in monopolizing the organized power of the sword within its territory, without giving up its claim to this monopoly. But, as we have repeatedly emphasized, our discussion is concerned with a normative structural function implying a task, a vocation for the internal organization of the State's power. This vocation can be fulfilled in a better or a worse way. It may be that in a certain part of its territory the body politic has actually monopolized the organized military power, and that outside of this area the State is only ‘a name’. But all these really variable situations do not detract from the universal validity of the normative struc-
¹

1 Cf. Vol. II, p. 246 ff.

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tural principle of the State, which implies the territorial monopolistic organization of military power as its typical foundational function. If in a well-ordered body politic a revolution breaks out, this state of affairs is put to the test; and it is proved that the structural relation mentioned cannot at all be altered by human arbitrariness. Such a revolution may be prepared by theoretical and practical political propaganda, by exerting a systematic influence on ‘national conviction’. But as soon as the revolutionary leaders want to take the government in their own hands, they must start with mastering the organized military apparatus either with sanguinary or with bloodless means.

In his famous article in the Enciclopedia Italiana on the Dottrina fascista Mussolini seemed to represent the fascist idea of State-power as an idea of moral authority, in which the territorial military organization would not at all have a typical foundational position¹. But this statement was concerned with international relations of power. Contrary to it there are many others in which the peculiar position of organized military power in the structure of the State is fully recognized, and even absolutized². The fascist revolution culminated in the historical march on Rome. This was an illustration of our exposition of the foundational place which the monopolistic organization of military power over a territory occupies in the structure of the State.
A truly political revolution which pulls down the existent government of a body politic, is radically different from a revolution which is typically founded in other historical structures of power and typically guided and directed by another leading function than that of the body politic. There are revolutions in science, in art, in the Church, etc., which as such do not have any political character.

1 Dottrina II, 13: ‘According to fascist theory, power is not a territorial, military or mercantile concept, but a moral and spiritual idea. It is quite well possible to imagine the working of a power exercized by one nation over another without the necessity of conquering even a quarter of a square mile of foreign territory’ (quoted by A. Menzel, Der Staatsgedanke des Faschismus, 1935, p. 61). Indeed, such ‘influence of power’ can be imagined. Recall, e.g., the influence of cultural power that vanquished Hellas had on Rome! It may be doubted if Mussolini would have been satisfied with such a typically non-political power for the ‘Italian nation’. In addition it can be imagined that a mighty State controls its weak neighbours simply by the dread of its military power. But this possibility does not fit to the intention of Mussolini's statement.

2 Cf. the Duce's essay: My Thought on Militarism (1934, quoted by Menzel, op. cit. p. 62): ‘The doom of a nation lacking a military spirit is sealed. For in the last instance it is war that is decisive in the relations between States. In my definition war is the supreme court of justice of the nations’. Cf. also Menzel, p. 70.

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The structural subject-object relation in the monopolistic organization of military power over a territorial cultural area.

According to its individuality structure this monopolistic organization of the power of the sword is not merely a technical apparatus. The foundational structural function of the State displays that typical subject-object relation which we already discovered when discussing the thing-structure of reality. It is true, the structural foundation of the State comprises an objective apparatus of military arms, buildings, aircrafts, airports, etc. But this military apparatus, as an historical object, is only meaningful in connection with an organized army or police force. Only subjective military bearers of power can actualize this objective apparatus: without them it remains ‘dead material’. As soon as we consider the organized military power of the State according to this subjective point of view, it is immediately evident how insufficient is a merely functionalistic technical conception. And also, how little this organized power can be shut up in the historical law-sphere. Military rules of discipline, rigid military forms of organization appear to be powerless in an army or police-force in which a revolutionary mentality has undermined the sense that the authority of the present government is legitimate¹.

It is evident here that the military organization of State power displays an opened, anticipatory structure that cannot be explained in terms of merely armed control.

All the same, this organization appeared to be an original historical type of individuality. The structural subject-object relation in the foundational function of the State is indeed very complicated. It also comprises the relation between the organized military power and the territorial cultural area of the body politic. From a modal historical standpoint this cultural area is to be viewed only as an object of the formative power of the State. From a structural viewpoint this historical aspect of the State-territory can never be conceived apart from the leading juridical function of this societal institution. But this necessary structural relation between the foundational and the leading function is no reason to ignore the peculiar modal meaning of the foundational function. Military organization of power in its historical modality is not of a juridical character. For this reason

1 There are good observations on this point in E. Brunner, Das Gebot und die Ordnungen (1932), pp. 433 ff.

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the area of the State's military power, as the object of the subjective formation of military control, cannot be grasped in a modal juridical sense.

The typical foundational function of the State-institution marks the latter as an institution because of sin. The attempt to accommodate this Biblical conception to the Aristotelian philosophy of the State.

In Holy Scripture, both in the Old and the New Testament, the organized power of the sword, which we have found to be the typical structural foundation of the State, is emphatically related to man's fall¹. Theologians have defended the view that in the Divine Covenant with Noah² the magistrate's power of the sword was called into existence. I will express no opinion on this point.

At an undifferentiated stage of culture there did not yet appear to be any question of a real body politic. The power of the sword is still enclosed in undifferentiated forms of interweaving. But from the Biblical point of view it cannot be seriously doubted that the power of the sword inherent in the office of the government, in its structural coherence with the leading function of the State-institution, has been incorporated into the temporal world-order by God because of sin. We have already observed that it would be fundamentally wrong to confuse the fact of this ‘because of sin’, referring to the institutional office of the military power, with the sinful subjective way in which the power of the sword is handled in a particular State.

We must first of all conceive of this power of the sword in its institutional structure. Then only can we judge of the actual handling of it, so that our judgment remains free from the naturalistic, or idealistic, rationalistic or irrationalistic conceptions, set forth in immanence-philosophy, as if the State were a ‘demonical’ or a ‘divine formation of power’.

Christian synthesis-philosophy, especially since Thomas Aquinas, has made the attempt to accommodate the Biblical view of the sword of the magistrate to the Aristotelian idea of the State, as a perfect natural community³. The State, as such, was considered to be founded in the (metaphysical essential) nature of man; only the power of the sword was supposed to be given to the

1 Cf. Rom. 13:1-5; 1 Peter 2:13; Revel. 13:10.

2 Genesis 9:6.

3 Cf. Vol. III, p. 219.

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government because of sin¹. This coercive power was considered to belong to relative natural law, i.e. natural law as it is modified by sin, in accordance with the Christian-Stoical terminology. But this attempt at accommodation entailed the metaphysical levelling of the societal individuality-structures criticized in an earlier context.

1 On this conception of the body politic Schilling (Naturrecht nach der Lehre der alten Kirche, 1914) bases his interpretation of the Stoic and patristic theories of the State and of absolute natural law.

The levelling constructive schema of the whole and its parts confronted with the fourfold use of a fruitful idea of totality.

Once the typical foundational function of the State has been theoretically pushed into the background, the entire individuality structure of this societal institution will be eliminated. Then there seems to be no alternative for an ‘organic theory’ but to construe the relationship between the body politic and the other societal structures according to the metaphysical schema of the whole and its parts. The remarkable and dangerous feature of an idea of totality, oriented to a constructive metaphysical principle of a perfect community like that found in Aristotle, is the indeterminateness of its meaning². For it has not been oriented to the individuality-structures of human societal life.

Up to now we have found three different kinds of correct and fruitful use of the Idea of totality:³

1.	in the Prolegomena, as the transcendental Idea of meaning-totality;
2.	in the general theory of the modal spheres, as the Idea of the totality of structural moments in a meaning-modus.
3.	in the theory of the individuality-structures of reality, as the idea of the whole of a thing or occurrence, or that of the whole of a particular relationship of human social life.

In this threefold use the Idea always remained oriented to a divine world-order which did not originate in ‘reason’, but limited and determined reason itself. In the constructive level-

2 Vol. III, pp. 201 ff.

3 The reader should remember that the Idea of totality is to be sharply distinguished from the modal concept of totality. The latter is merely a provisional resting-point for thought and only embraces the restrictive structure of a meaning-modus; it is transcendentally dependent on the Idea of totality.

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ling abuse of this Idea, it loses its essential structural character and the delimitation of its meaning.

Later on we shall discover a fourth use of the totality-Idea, viz. as the Idea of the integration of human societal relations. Then we can do justice to the moment of truth in the totality-Idea of the universalistic theories. At the same time, however, we shall find that the Idea of totality in this fourth application remains absolutely bound to that in the first, second and third uses. Apart from these three it must lead to a fundamentally false construction of the mutual relations between the societal structures.

§ 3 - The typical leading function of the state and the theory of the so-called ‘purposes’ of the body politic.

We will now examine the typical leading function of the State's structure in its indissoluble coherence with the foundational function analyzed above.

At the outset we warned against identifying the leading or qualifying structural function of a thing with the purposes it is to serve. We have repeated this warning with reference to the inner structure of natural communities. Similarly, the leading or qualifying function of an organized human community should not be misinterpreted as the end or ends that human beings try to reach in this relationship by means of their organized endeavours. This warning is especially to the point in the case of the typical leading function in the structure of the State.

The theories of the ‘purposes of the State’ bear no reference to the internal structural principle of the body politic.

The theory of the purpose of the State is as old as political philosophy. It is burdened with the great diversity of meanings implied in the word ‘purpose’, which is used now in a metaphysical-realistic, now in a subjectivistic-nominalistic sense, now in an absolute, then in a relative way. In immanence-philosophy the theory of the purpose of the body politic sometimes contained an a priori rational construction, serving to justify the State, and thus assumed an explicit axiological character.

Realistic scholasticism used this theory to prove that the institutional Church is of a higher value than the State. The

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Humanistic doctrine of natural law and that of ‘Vernunftrecht’, in their subjectivistic-teleological constructions of the body politic, made the latter into a mere instrument in the service of the individual or into that of a national cultural community. Then the ‘purpose of the State’ was conceived in the sense of the classical liberal idea of the law-State¹ (Locke, Kant, v. Humboldt) or in the eudaemonistic sense of the ‘welfare State’ (the police-State of Chr. Wolff and his pupil Justi). Or again in the idealistic sense of a culture-State (Fichte is his last phase)². But this teleology never had any inner relation to the real structural principle of this societal institution. From an historical standpoint the different theories of the subjective ‘purpose of the State’ propounded in the Humanistic doctrines of natural law prove to be only the expression of a political tendency at the time of their inception. This explains why they became untenable as soon as the historical situation changed. Hence the futility of every attempt to grasp the intrinsic structural limits to the task of the State in such a teleological way.

1 The term law-State is used here in the sense of the German term ‘Rechtsstaat’, which is not to be adequately rendered by ‘rule of law’.

2 Fichte defended his idea of a culture-State in his Staatslehre (1813).

The old liberal theory of the law-State as a theory of the purpose of the body politic.

We shall once more consider the Humanistic theory of the law-State³.

In its first stage, viz. the classical natural-law stage (Locke, Kant, von Humboldt), this theory aimed at limiting the ‘purpose of the body politic’ construed in the social contract. The State was supposed to have no other aim than the organized protection of the ‘innate absolute human rights’ of all its citizens to freedom, property and life. It should not interfere with the non-political society which by the liberal economic theory was viewed under an exclusively economical aspect and sharply distinguished from the body politic. Thus this theory was the expression of the old-liberal programme of non-interference (‘laisser faire, laisser passer’). But its starting-point was an individualist-nominalistic view of reality and could not but

3 My view of the development of this theory has been amply elaborated in the standard work of Prof. Dr. J.P.A. Mekkes, Proeve eener critische Beschouwing der Humanistische Rechtsstaatstheorieën (Utrecht-Rotterdam, 1940), 752 pp.

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eliminate the structural leading function of the State-institution. ‘Law’ itself was conceived in the individualistic natural-law sense of ‘innate subjective rights’ and supposed to be a ‘purpose’ lying outside of the State. In an earlier context we called Locke's ‘law-State’ a limited liability company continuing the ‘state of nature’ under the protection of governmental authority¹.

In Kant's idea of the law-State, public law and civil law are materially identified. Civil law ‘guarantees the external “mine” and “thine” by means of State-laws’². Kant's ‘concept of law’ (in his way of thought it should be called his normative Idea of law) is nothing but an a priori idea of civil private law, the principle of civil-legal co-existence: ‘Law is the totality of the conditions under which the arbitrary will of one individual with the arbitrary will of another can be united according to a general law of freedom’³.

This idea was further defined, by applying Thomasius' criterion of law as a coercive regulation, as ‘the possibility of a mutual universal constraint which is in agreement with everybody's freedom according to general rules’⁴.

The classical liberalistic idea of the law-State finds its pregnant expression in Kant's pronouncement on the contents of public law: ‘The latter does not contain any more or any other duties of men to one another than can be thought of in the former (i.e. in the natural state of private law); the matter of private law is exactly the same in both. The rules of the latter are therefore only concerned with the legal form of its union (constitution), with respect to which these rules must necessarily be considered as public’⁵.

1 Vol. I, part. II, p. 318.

2 Metaphysik der Sitten, 1er Teil (W.W. Grosh. Wilhelm Ernst Ausg. V), p. 425.

3 Op. cit. p. 335: ‘Recht ist der Inbegriff der Bedingungen, unter welchen die Willkür des Einen mit der Willkür des Andern nach einem allgemeinen Gesetze der Freiheit zusammen vereinigt werden kann.’

4 Op. cit. p. 337: ...‘die Möglichkeit eines mit jedermans Freiheit nach allgemeinen Gesetzen zusammenstimmenden durchgängigen wechselseitigen Zwanges.’

5 Op. cit. p. 425/6: ‘Dieses enthält nicht mehr, oder andere Pflichten der Menschen unter sich als in jenem (i.e. in dem Zustand des Privatrechts) gedacht werden können; die Materie des Privatrechts ist eben dieselve in beiden. Die Gesetze des letzteren betreffen also nur die rechtliche Form ihres Beisammenseins (Verfassung), in Ansehung deren diese Gesetze notwendig als öffentliche gedacht werden müssen.’ Compare also the extremely vague definition of public law in § 43 (p. 431) op. cit.: ‘Der Inbegriff der Gesetze, die einer allgemeinen Bekantmachung bedürfen um einen rechtlichen Zustand hervorzubringen, ist das öffentliche Recht. Dieses ist also ein System vom Gesetzen für ein Volk, d.i. eine Menge von Menschen, oder für eine Menge von Völkern, die im wechselseitigen Einflusse gegen einander stehend, des rechtlichen Zustandes unter einem sie vereinigenden Willen, einer Verfassung (constitutio) bedürfen, um dessen, was Rechtens ist, teilhaftig zu werden.’ [The totality of the rules that require general publication in order to create a legal order, is public law. This is, therefore, a system of rules for a nation, i.e. a multitude of people, or for a multitude of nations who mutually influence each other and are in need of an organization (constitution) under one will that unites them, if they are to obtain that which is law.]

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In the ‘trias politica’¹ postulated by this idea of the State, in which according to Montesquieu's prescription, the legislative, the executive, and the judiciary powers ought to be kept strictly apart and equilibrated, the ‘executive authority’ is merely an alien element (‘Fremdkörper’). There is no room for an ‘administrative authority’ with an independent positive task in this civil-law idea of the body politic. The State has become a form (‘Verfassung’) for private juridical life.

The only thing in this idea of the law-State reminiscent of the internal structure of the body politic is the coercive character of the legal order. It has been conceived in an undefined ‘general concept’ of ‘coercion’, and is connected with the idea of freedom, as the supposed normative essence of justice, in a characteristic logicistic-dialectical way: Legal coercion is the negation of a negation of freedom (injustice), according to general rules, and according to Kant it is thus consonant with freedom.

It is important to note that Kant thinks he must restrict this civil law idea of the law-State to the internal relations of the latter. In the external relations to other States he conceives of the body politic only as a ‘power’, as a ‘potentate’². In Kant's definition of the State, as the ‘union of a multitude of people under legal rules’³, the foundational function has been ignored, almost on purpose. He appa-

1 Op. cit. pp. 433 ff.

2 Metaph. der Sitten (the edition cited), p. 431. Cf. also Fr. Darmstaedter: Die Grenzen der Wirksamkeit des Rechtsstaates (Heidelberg, 1930), p. 2. Heinrich Rickert's pronouncement in his Kant als Philosoph der modernen Kultur (Tübingen 1924), p. 113, that Kant would have held the view ‘the State is power’, is to be restricted to the international relationships as long as no international jurisdiction has been instituted. Besides, Kant could only conceive of power in an empirical naturalistic sense.

3 Metaph. d. S. (the edition cited), p. 433.

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rently derived this definition from Cicero. But even Kant's critical freedom-idealism could not carry this disregard through consistently.

The theory of the law-State in its second phase as the theory of the merely formal limitation of the purposes of the State. The formalistic conception of administrative jurisdiction.

In its second phase (Stahl, Otto Bähr, Rudolph Gneist) the theory of the law-State was not really a theory of the purpose of the body politic any longer. It assumed a formalistic character: the old liberal idea of the law-State was transformed into that of the rule of statute law. Law, in the sense of a civil legal order protecting the subjective innate rights of man, was no longer considered to be the purpose of the body politic. Instead, the idea of the law-State was now related to a public administrative legal order as a formal limit to which the magistrature would have to be bound in its administrative activities, when promoting cultural and welfare purposes. This formal legal limitation was required in the interest of the legal security of the citizens. This ‘legal restriction’ of the ‘executive authority’ was found by subordinating the administrative organs to legislation. The statute law was to protect the citizens from administrative arbitrariness. In this sense the modern idea of the law-State was formulated by Fr. Julius Stahl in his statement: ‘The State should be a law-State... It should accurately determine the roads and boundaries of its activity as well as the free spheres of its citizens in a legal way... and it should not realize the ethical ideas any further than insofar as they belong to the legal sphere. The concept of the law-State is not that the body politic only maintains the legal order without any administrative purposes, or accords only complete protection to the rights of individuals; it does not mean the aim of the State but only the mode and character of realizing its political ends’¹. In itself this utterance

1 Fr. Julius Stahl, Philosophie des Rechts nach geschichtlicher Ansicht (3e Aufl.) Bnd. II, I, pp. 137-138: ‘Der Staat soll Rechtsstaat sein... Er soll die Bahnen und Grenzen seiner Wirksamkeit wie die freie Sphäre seiner Bürger in der Weise des Rechts genau bestimmen... und soll die sittlichen Ideen von staatswegen nicht weiter verwirklichen als es der Rechtsphäre angehört. Dies ist der Begriff des Rechtsstaates, nicht etwa dass der Staat bloss die Rechtsordnung handhabe ohne administrative Zwecke, oder vollends bloss die Rechte der Einzelnen schütze, er bedeutet nicht Ziel des Staates sondern nur Art und Charakter, dieselben zu verwirklichen.’

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seems to be quite acceptable. But in the context of Stahl's view of law it implied that public administrative law was depreciated to a merely formal law and opposed to (civil) material law in a dualistic way. According to Stahl the principles of material law are to be found in the Decalogue, and the subjective private rights are in principle grounded in the latter.

It is evident that in this conception of the law-State the legal order is connected with the power of the body politic only in an external, formal way. Stahl, and all the adherents of this idea of the law-State, look upon administrative law only as a formal limitation (‘Schranke’) within which the government can operate free of material legal principles when pursuing the ‘cultural and welfare purposes’.

The non-juridical ‘purposes of the State’ are not given any internal structural delimitation, if their administrative realization is only bound to the formal limits of legislation. This formalistic conception of public law is closely connected with the equally formalistic, and essentially civil juridical view of administrative judicature, represented as a requirement of the modern constitutional State by the Hessian jurist Otto Bähr¹ and Rudolph Gneist².

Even at the present time it is customary to distinguish between legal questions and utility questions in the theory of administrative judicature. The merely formally conceived legal questions are subjected to the decision of the administrative judge; but the material, internal legal questions are not, because the latter are qualified as ‘questions of utility’. This is really a consequence of the formal idea of the law-State, and shows a lack of a really structural conception of the internal law of the body politic. We shall recur to this point in a later context.

In its second phase the theory of the law-State is the expression of a political tendency that has radically broken with the old-liberal programme of political non-interference with the free (non-political) society. The ‘executive’ is here subjected to the formal limits set by the legislature as far as the State's administrative task is concerned. This task is supposed to be the pecu-

1 O. Bähr, Der Rechtsstaat, p. 134, explicitly demands that ‘the power of the government... in its application..., just like private rights, shall be subordinate to the law’ (die Regierungsgewalt... in ihrer Betätigung... gleich den Privatrechten unter dem Rechte’ stehen soll).

2 R. Gneist, Der Rechtsstaat.

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liar domain in which the body politic has to promote the prosperity and the ‘culture’ of the national community.

The third phase in the development of the theory of the law-State. The uselessness of any attempt to indicate fundamental external limits to the State's task by the construction of limited subjective purposes of the body politic.

The extreme denaturing of the idea of the law-State is seen in its third stage of development. Then it no longer purports to be a political idea of the legal delimitation of the State's task but is viewed to be nothing but a logical consequence of methodical purity in the general theory of the body politic. This conception has found expression in the theory of Kelsen and his school. In this theory State and law are identified at the expense of the entire content of both the idea of the State and that of law.

In the logicist formalism of this school even the ‘dictatorial absolutist State’ formally becomes a ‘law-State’, in which the executive has only gained absolute priority over the legislature. For, according to Kelsen, every State must be ‘logically’ conceived as ‘law’¹. Thus this concept of the law-State also embraces the totalitarian absolutist State and thereby loses any material normative meaning.

Indeed, even the national socialist and fascist power-States laid claim to the qualification of true or material law-States. Yet their ideology did not recognize any material juridical limits to the competence of the authority of the body politic².
This fact in itself is important insofar as it shows that these political ideologies could not completely ignore the structural principle of the body politic, notwithstanding their overstraining the idea of power. For in this structural principle the juridical function has indeed the typical leading rôle.
Another fact, too, is evident, viz. how little the traditional idea of the law-State was oriented to the invariable internal structure of the latter. The classical individualistic liberal idea of the body politic

1 Cf. my De Crisis in de Hum. Staatsleer, p. 45 and Kelsen's statement quoted there.

2 Cf. for the fascist ideology of the stato giuridico (law-State) Menzel, pp. 73 ff., Giuseppe lo Verde, Die Lehre vom Staat im neuen Italien (Berlin, 1934) pp. 54 ff. and S. Panunzio, Allgemeine Theorie des fascistischen Staates (Berlin und Leipzig, 1934) pp. 78 ff. For the German national-socialist ideology of the law-State cf. Koellreuter, Deutsches Verfassungsrecht, p. 12, Carl Schmitt, Nationalsozialismus und Rechtsstaat (J.W. 1934, 63 Jg., Heft 12/13) and G. Havestadt, Der Staat und die nationale Gesamtordnung (Arch. d. öff. R., N.F. 27 Bnd., I Heft, 1936, pp. 76 ff.

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ignored the typical public communal law of the State in the sphere of public administration, but claimed the monopoly of being ‘an idea of the law-State’. The same privilege was claimed by the formal idea of the law-State with its formalistic conception of public law. But we fail to see what entitled these views to such an exclusive claim. Also the Italian fascist State formally bound its organs to the prevailing legal norms and allowed for a certain administrative judicature. This State, just like the German ‘third Empire’ (Dritte Reich), pretended to realize a material, universalistic conception of law, in contradistinction to the formalistic and individualistic legal idea.

From the outset the old liberal theory of the law-State lacked the insight into the typical internal structure of the legal function as the leading function of the body politic. This explains why it could not really stem the rising tide of the idea of the totalitarian State. For the historical development made fresh demands on public life incompatible with the earlier political conceptions of the State's purposes.

The attempt to curtail political absolutism by means of the construction of restricted ‘purposes of the State’ was doomed to failure. The political ideas about the external extent of the State's task are necessarily dependent on historical development. They should not be confounded with the invariable normative structural principle of the body politic¹.

Kelsen must undeniably be credited with having detected this weak spot in the anti-absolutist theory of the restricted ‘purposes of the State’. He opposed the introduction of ‘political postulates’ in the general theory of the State. But his own ‘normo-

1 This confusion also occurs in G. Jellinek, Allgemeine Staatslehre (3e Aufl. 1919), pp. 235 ff. He posits that only such a definition which takes the State's purposes into account, can offer a well-defined criterion to distinguish the body politic from other societal structures (e.g., the Church). This thesis is closely connected with his subjectivistic individualistic conception of an organized community as a ‘purposive unity’ (Zweckeinheit) in a socio-psychological sense. Cf. op. cit. p. 179: ‘Eine Vielheit von Menschen wird für unser Bewusstsein geeinigt wenn sie durch konstante, innerlich kohärente Zwecke mit einander vereinigt sind’. [To our consciousness a plurality of people are united when they are combined by constant, internally cohering purposes]. Therefore in his opinion the sociological theory of the State should point out ‘those purposes by means of which the multiplicity of people united in the State appear to us as a unity’ (op. cit. p. 234). Meanwhile Jellinek has not succeeded in showing an inner coherence between the different political aims of the modern State so that they are to be conceived as a unity.

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logical’ theory resulted in the theoretical negation of both State and law.

The question what concrete subjective purposes a body politic has to realize at different times and in different places, presupposes the internal structure of the State as such. This is the first insight to be gained if we want to grasp the internal leading function of this societal institution. A State cannot serve any ‘purposes’ if it does not exist as such. And it can have no real existence except within the cadre of its internal structural principle determining its essential character.

The objective -metaphysical ideology of the State, and the theory of the State as an absolute ‘Selbstzweck’ are equally objectionable.

But this insight implies a fundamental rejection of any attempt to derive the essential nature of the State from an ‘objective’ cosmic purpose the latter is supposed to serve. What we have remarked with respect to such a metaphysical teleological view of the institutions of marriage and family, is equally valid for the body politic. Of course, this does not imply that we reject the inquiry after an essential purpose of the State on positivistic grounds. Neither do we make any concession to Hegel's political philosophy which rejects the idea of an essential purpose of the State because the body politic is supposed to be an absolute end in itself (‘Selbstzweck’). In his view, just as in the organological theory of the State of Romanticism, this societal institution is the highest revelation of the ‘objective Spirit’, the totality of morality (‘Sittlichkeit’), ‘the absolute unmoved end in itself’, in which freedom attains to its highest rights. This final purpose has in its turn the highest claim on the individual whose highest duty is being a member of the body politic¹.

No Christian conception of the State can deify this institution to a self-contained ‘absolute end in itself’, if it wants to grasp the typical meaning-structure of the body politic.

1 Cf. on this Karl Larenz, Staatsphilosophie (München und Berlin, 1933), p. 177.

The typical leading function of the State in its indissoluble coherence with its foundational function.

As soon as the confusing totalitarian identification of the State and the whole of human society is abandoned and the nature of the body politic as a differentiated republic is acknowledged, the tracing of its typical leading function becomes indispensable.

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This typical leading function as a structural qualification of the State-institution is only to be found in the juridical law-sphere.

It is in vain to seek for another qualifying aspect. That a real body politic cannot be qualified by its territorial military power-formation must be evident as soon as we consider that, as a res publica, it is always in need of the subordination of its armed force to the civil government in order to guarantee that stability of its public legal order which is characteristic of a State. A temporary delegation of the governmental authority to a military commander has in the nature of the case an exceptional character. It is an emergency measure to which a body politic has only recourse in times of war or revolutionary disorder. But in its internal structure the monopolistic military organization is always subservient to a stable territorial public legal order, which also in international law is the ultimate criterion of the existence of a State. This order is only founded in a monopolistic organization of armed force.

Kelsen has convincingly shown that every attempt of a naturalist or cultural-scientific sociology to gain a concept of the State apart from the normative legal viewpoint, is doomed to fail. His erroneous identification of the body politic with a system of legal norms can only be explained by the fact that the juridical aspect has indeed a qualifying position in the structural principle of this organized community. This is precisely the difference between the State and all differentiated communities of a non-political character. It is true that the latter also have an internal legal sphere. But they are never qualified by this internal juridical function.

A real State cannot find its qualifying function in any other than the juridical aspect, and without this leading function it would degenerate into an organized military gang of robbers, because of its very foundation in armed force.

This is not merely a specific difference, but it distinguishes the body politic radically from the non-juridically qualified organized communities, such as a Church, an industrial community, a family, a school, a club, etc. But the State's qualifying function can only be grasped in its structural coherence with its typical foundational function. The indissoluble, typical-internal structural coherence between ‘right and might’ in the State-relationship is first of all expressed in the structure of its authority.

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In contradistinction to this structure in all non-political communal relationships, authority in the State, according to its inner nature, is governmental authority over subjects enforced by the strong arm¹.

The government does not carry the sword in vain. It has been invested with the power of the sword, and as soon as the sword slips out of its hands, it is no longer a government. But according to the structure of its divine office this power is internally directed to the structural guidance by that typical legal communal function whose type of individuality is founded in this sword-control. All internal communal law of the State-institution in a structural sense is public territorial law imposing itself with governmental legal authority and maintained with the strong arm. Its sphere of competence will appear to find its internal limits in this structure itself.

That is why Gierke's elaborate discussion² of the ‘Obrigkeitsstaat’ in contrast with the ‘Volksstaat’, oriented to the ‘Germanic associational mind’, is misleading, at least terminologically, and also historically. Every true State is essentially an ‘Obrigkeitsstaat’, according to the internal structure of its authority. But governmental authority is certainly not identical with some bureaucratic, centralistic and absolutist form of organization, excluding any active participation of popular organs in governmental affairs. Maurice Hauriou has rightly observed that the State-idea, which initially only influences a small elite undertaking its realization, has the natural tendency to incorporate itself in the whole of a people. What is really meant in Gierke's contradistinction between ‘Obrigkeitsstaat’ and ‘Volksstaat’ is the contrast between the autocratic Roman imperium-idea and the democratic form of government. But the latter should not be brought in connection with the old Germanic and medieval Germanic associations which in their undifferentiated character were rather opposed to the State-idea.

All the pre-legal internal modal functions of the State should be guided by and directed to the territorial public legal community qualifying the body politic. A military usurper who does

1 Cf. on this Karl Larenz, Staatsphilosophie (München und Berlin, 1933), p. 177.

2 The Dutch text has ‘overheidsgezag over onderdanen’ (German: ‘Obrigkeitsgewalt über Untertäne’). These pregnant terms are not to be rendered by adequate English words.

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not perform the typical duties of the public legal office of the government can never be an organ of the State, but remains the leader of an organized gang of robbers. But on the other hand it must be emphatically repeated that the legal organization of the body politic, in its typical authoritative character, remains indissolubly founded in the historical organization of territorial military power. Apart from the latter, the internal public legal order of the State cannot display that typical juridical character which distinguishes it from all kinds of private law. It would be erroneous to suppose that this internal public law order lacks an inner juridical type of individuality and is only characterized by its external connection with the coercive apparatus of military power. We shall show in the sequel that it is rather characterized by typical legal principles. It was the disregard of the latter that led to the formalistic view of administrative jurisdiction mentioned above.

Only within the framework of its invariable structure can a real State-community be formed with an organized communal will. The ‘will of the State’ is by no means a fictitious legal abstraction, but the real organized will of a communal whole. It is true that this will is qualified by the juridical relation between the government and its subjects, and founded in historical territorial military power. But it asserts itself in all the aspects of our social experience as an organized unity of volitional direction, realized in the organized actions of a societal whole. And it is fundamentally wrong to oppose this typical organization as a one-sided ‘mechanical’ organization of governmental functions, to the people, as if the latter had an independent existence opposite to that of the government. After the definitive dissolution of the primitive popular and tribal organizations, no people of a differentiated cultural level exists otherwise than in a public community, by which it is indissolubly united with a government, as the bearer of authority. In the national State there does not exist a people apart from a government, and there is no government apart from a people. The people become a political unity only in the territorial organization of government and subjects. This truth must be strongly upheld against the romantic theory of the ‘people’ as a mystic ‘natural organism’.

The difficult question concerning the relation between a State, and a national community which is not identical with the political unity of a State's people, will demand our attention in a later context.

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The typical integrating character of the leading legal function in the structure of the State. The State's people as an integrated whole.

We have now arrived at the most critical point of our inquiry. The leading function in the structure of the State has proved to be a public legal relationship uniting government, people and territory into a politico-juridical whole. As the structural whole has priority to its constituents, it makes no sense to speak of the latter in terms of separate ‘elements’ of the body politic. This is also to be kept in mind with respect to the leading juridical aspect of the State-institution. That the latter has nothing to do with a particular aim of the State has been shown above in our critical analysis of the old liberal idea of the law-State. A body politic cannot realize specific purposes unless it exists as such. And it cannot exist apart from its structural principle qualified by its leading function. This leading function lacks a typical non-juridical qualification, since the foundational function of power cannot supply this. In principle this implies the unique universality and totality of the internal legal community of the State, which is not found in any other societal structure.

The traditional universalistic theory of the State as the integral totality of all the other societal structures seems thus to be justified at least with regard to the legal organization of the body politic. In the internal structure of the State the modal juridical sphere-sovereignty does not seem to be individualized as a typical structural juridical sphere-sovereignty. But is the State, in its internal juridical sphere, really a juridical community with an unqualified coercive legal power, absorbing all the internal juridical relationships of a different radical and geno-type, as its component parts? This is impossible, since the individuality-structures of the non-juridically qualified legal relationships can never assume the structural character of public legal relationships inherent in the State. The relation between the typical universality of the internal public legal sphere of the State, and the qualified juridical spheres in non-political societal structures, cannot be conceived of in the schema of the whole and its parts.

The problem raised by the leading function of the State will perhaps be brought nearer to its solution if we remember that every body politic organizes a people within a territory into a typical, legally qualified, public community. The State's people is indeed the typical totality of all the citizens irrespective of

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their family-relations, their Church-membership or their philosophical convictions, their trades or professions, class-distinctions, or their social standing. The State constitutes a typical integrating political unity in spite of any differences or divisions which its people display in other societal relationships.

How is this integration possible? The State cannot integrate these differences in profession or trade, ecclesiastical or philosophical trends, social classes, etc., into the structure of a totalitarian professional or industrial organization, a totalitarian philosophical or Church community, or in the social structure of a totalitarian class. Nor can the State become an undifferentiated totality of all the ‘special’ societal relationships within its territory. The integration of the citizens into the political unity of a people is in principle bound to the typical structure of the body politic, in which the leading function is that of a public legal community. This is an unparalleled, unique structural principle enabling the State to organize within its territory a truly universal legal communal bond transcending all non-juridically qualified legal societal relations. Neither internal ecclesiastical law, nor internal industrial law can have this typical public juridical integrating function, however large the number of the members of a Church or an industrial community may be. These legal spheres are limited by the typical particularity of their non-juridical qualification and lack the universally integrating character inherent in the internal public legal sphere of the State. In the territorial legal community of the body politic all the specifically qualified juridical interests should be harmonized in the sense of a truly public legal retribution, and integrated into ‘the public interest’.

This implies that the principle of public interest must itself have a typical juridical qualification which delimits its supra-arbitrary structural meaning. It can never warrant an encroachment upon the internal sphere-sovereignty of non-political societal relationships. For the idea of an absolute competence of the State contradicts the modal meaning of the juridical aspect and is incompatible with the typical structural principle of the body politic. We shall recur to this point presently.

The real structure of the internal public law. In the monistic legal theories this structure is ignored and an unjustified appeal is made to legal history.

It is the principle of public interest which in its leading juri-

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dical aspect also gives a typical material legal meaning to the internal public law of the State. Wherever the State-structure, as such, expresses itself as a differentiated res publica, within the juridical aspect of human society, this public law appears. In unbreakable mutual coherence it embraces legal organizational and behaviour norms. The former regulate the organization and competences of the different authoritative organs of the body politic; the latter regulate the public legal relations between the authoritative organs and the subjects. In spite of any enkaptic structural interlacements with civil private law, and with the non-political communal or inter-individual legal spheres, this public law retains its internal structure. True public communal law is never non-juridically qualified, although under the lead of the principle of public interest the legislator may pursue different political aims. Besides, the general principle of public interest will be differentiated in its material content by the different branches of the State's task, which varies with the historical development of a differentiated society.

The functionalistic juridical theories do not know what to do with the concept of ‘public law’ in its classical contradistinction to private law. This is not surprizing since they do not take into consideration the internal structure of the State.
The view implied in these theories must result in the levelling of the individuality-structures. Such may be due to a formalist (logicistic) conception of law (Kelsen) or to a historicist-psychological view of the latter (Krabbe, v. Idsinga). Insofar as such monistic theories make an appeal to medieval legal conditions¹, to prove that the distinction between public and private law cannot be fundamental, we should be on our guard. It is necessary then to lay bare the structural-theoretical conditions of a really scientific historical inquiry into the human societal relationships, to unmask the petitio principii in this supposed ‘objective’ historical demonstration. If the feudal medieval society lacked a fundamental distinction between public and private law, this can only be due to the fact that the undifferentiated condition of this society had not yet room for a real State. It can never prove that the distinction mentioned is not essential to the State as such.
It is not critical to seek for a fundamental distinction between public and private law in the Middle-Ages without considering the preliminary question whether medieval society, as long as the feudal system prevailed, had any room for a real republican idea of governmental authority. In this connection we mention v. Below's studies of the ‘medieval German State’. They are of special methodological

1 In addition an appeal is often made to the modern British legal system, which is supposed to lack a distinction between public and private law. But this is simply a misinterpretation of the ‘rule of (common) law’ which could maintain itself in England almost until the end of the XIXth century. This ‘rule of law’ had nothing to do with an elimination of the classical distinction between public and private law as such, which is as old as the State itself. It only meant that since the glorious Revolution there was no longer a specific royal administrative jurisdiction exempt from the courts of common law. Dicey praised this system and erroneously supposed that the French system of administrative jurisdiction had no other aim than to provide the organs of public administration with a privileged position. The truth was that in the long run the common law jurisdiction could not provide the citizens with a sufficient legal protection against administrative acts implying an undue encroachment upon their legal interests. The French Conseil d'Etat gave this protection in an exemplary way by applying typical public legal principles to the State's responsibility even when the latter might not be grounded on civil law rules which before 1912 were applied to unlawful acts of public administration by the Cour de Cassation (Cf. Paul Duez, La Responsabilité de la Puissance Publique). And the British system of the ‘rule of common law’ has since long been broken through by the introduction of a continually increasing administrative jurisdiction.

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importance, in as much as he has pointed out the erroneous absolutization of the economic-historical viewpoint in various monistic interpretations of the legal historical material. He has tried to deprive the monistic theory of one of its most cherished arguments, viz. the lack of a fundamental difference between public and private law in the Middle-Ages¹. Other German legal historians have followed him in this attempt.
But to my mind von Below has not been able to free himself from the prejudice that the question as to whether we can speak of a real State in the Middle-Ages, can be answered in a purely historical way. He also holds that we must not base our inquiry on structural theoretical insights into the essential character of the body politic². This shows a lack of critical insight. Moreover, this historian has most certainly based his investigations on some structural theoretical insight into the nature of the State. This appears from the emphasis he has laid on the necessity of a juridical training of historians who want to examine the medieval political conditions³. In this context

1 Cf. v. Below, Der deutsche Staat des Mittelalters, Bnd. I (2e Aufl. 1925). We would especially refer to the critical methodological remarks against straining the economical viewpoint: pp. 75 ff. Cf. also his: Die Entstehung der deutschen Stadtgemeinde (1889); Der Ursprung der deutschen Stadtverfassung (1892) and Territorium und Stadt (1900), especially pp. 303 ff. Cf. also H. Mitteis, Lehnrecht und Staatsgewalt (Weimar, 1933) pp. 198 ff., pp. 300, 321, 406, 516, 520, 575, etc.

2 Cf. Der deutsche Staat des Mittelalters (2e Aufl. 1925) p. XXV.

3 Cf. especially op. cit. p. 84. Here v. Below blames Nitszch for a fundamental lack of insight into the medieval political conditions on account of the fact that ‘notwithstanding his absorbing interest in the enquiry into the facts Nitszch lacked that juridical intuition or training without which a description of constitutional history is simply unthinkable.’ [‘dass ihm bei all seinem verzehrenden Interesse für die Erforschung der Realien die juristische Beanlagung oder Schulung gefehlt hat, ohne die nun einmal die Darstellung der Verfassungsgeschichte... undenkbar ist.’

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he could only mean that the legal historian should have an insight into the fundamental difference between public and private law inherent in the structure of the State. But this insight is not sufficient. The legal historian should also be aware of the danger of interpreting the medieval feudal system in terms of legal structural distinctions which only fit to a differentiated condition of human society. He should have a theoretical insight into the fundamental difference between undifferentiated and differentiated societal structures. How is the historian to gain such an insight from the changing historical facts if the latter are not included in supra-historical structures? These structures must first be clearly seen if the historian wants to interpret his legal material correctly.
From the historical viewpoint one should fight shy of a generalizing conception of the medieval political conditions. The political conditions of the late Middle-Ages were very different from those of early and High medieval feudalism. And as to the Frankish kingdom there is a fundamental difference between the Merovingian patrimonial regnum and the Karolingian State, founded on the idea of the res publica. These differences are not duly considered by von Below. Compare, for instance, his generalizing characterization of the public legal foundation of the Frankish empire (Der deutsche Staat des Mittelalters, pp. 210 ff. with an appeal to Waitz, Roth and Sohm).

The real meaning of the absolutist idea of the State and the true idea of the law-State.

A real public legal integration of a country and people is, therefore, only possible within the internal limits set by the structural principle of the State-institution itself. This integration can only be accomplished within the juridical limits set by this structural principle to the competence of the body politic, and with due regard to the internal sphere-sovereignty of the other societal structures. Every political theory denying these limits is in principle a theory of the ‘power-State’, even though it masks its absolutization of the State's power by a law-State ideology.

In whatever shape the absolutist idea of the body politic is set forth, it does not recognize any intrinsic legal limits to the authority of the State. This idea implies an absorption of the entire juridical position of man by his position as citizen or as subject of the government.

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If we cannot appeal to any law outside of the State, if the body politic has a so-called ‘Kompetenz-Kompetenz’, i.e. a pseudo-juridical omnipotence, then the authority of the State has been theoretically deprived of any legal meaning and has in principle been turned into juridically unlimited political power. Neither a theoretical subjection of this power to some general principles of natural law, nor a theoretical construction of a so-called legal self-restriction of the State-power, can undo the harm implied in the initial absolutization inherent in the idea of sovereignty of the body politic, current since Bodin. But in the true idea of the law-State, the divine structural principle of the body politic limits the peculiar universality of the internal public law to a universality and sovereignty within its own sphere of competence. Every attempt on the part of an absolutist government to exceed the intrinsic boundaries of its legal power results in a despotism which undermines the very fundamentals of its authority. But even such a despotism can only occur within the structural principle of the body politic, which is beyond any human arbitrariness.

The idea of ‘the public interest’ and the internal limits set to it by the structural principle of the State.

When we have gained an insight into the inner nature of the public legal communal sphere of the State, we can also find the internal limits to the idea of the ‘public interest’ as a guiding principle for the internal State-policy. In the nature of the case this principle cannot be identical with its leading juridical aspect. But it is only the latter which can give to it its inner limitation as the material principle of public communal law.

The idea of the ‘salus publica’ displays a genuine Protean character in political theory. It was made subservient to the ancient universalistic-organic theory of the State, to the doctrine of the ‘reasons of State’, to Wolff's natural law theory of the police-State, to Hobbes' and Rousseau's natural law construction of the Leviathan-State, but also to the classical liberal doctrine of the constitutional State (Locke and Kant), and to the modern totalitarian political theories.

For the sake of the public interest Plato and Fichte defended the withdrawal of the children from their parents and wanted their education to be entrusted to the body politic. With an appeal to the public interest Plato wanted to abolish marriage and private property as far as the ruling classes of his ideal

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State were concerned. Aristotle wanted education to be made uniform in ‘the public interest’; on the same ground Rousseau wished to destroy all the particular associations intervening between the State and the individual citizen. Wolff desired the body politic to meddle with everything human and, at least for the Protestant Churches, he wanted the government to fix the confession. The idea of the ‘salus publica’ was the hidden dynamite under the Humanistic natural law theories of Hugo Grotius and S. Pufendorff¹. In Chr. Wolff's doctrine of natural law this idea resulted in a frankly admitted antinomy with his theory of innate natural rights². The slogan of the public interest was the instrument for the destruction of the most firmly established liberties because it lacked any juridical delimitation.

The terrible threat of Leviathan is audible in this word as long as it is used in a juridically unlimited sense. The universalistic political theories could conceive of the relation between the State and the non-political societal structures only in the schema of the whole and its parts. This is why they could not delimit the idea of ‘the public interest’.

According to Aristotle the State, as the autarchical ‘perfect community’, has to supply its citizens any good they cannot obtain either individually or in the ‘lower communities’. This is not an inner structural criterion of the legal limits of the public interest but only one for the external extent of the State's task. It is oriented to a metaphysical theory of the purpose of the State, and is entirely in accordance with the ancient totalitarian idea of the body politic. In this conception there is in principle no possibility of freedom outside of the State.
Rousseau's idea of the ‘public interest’ was only limited by the natural law principle of the equality of all the citizens before the statute law and consequently by the exclusion of any private privileges of individuals. This idea was to be expressed in the ‘general will’ (la ‘volonté générale’); it did not imply any material legal restriction of competence of the legislator; it sanctioned the absolutist power of the State over all spheres of life, even over public worship.
Chr. Wolff's criterion of the salus publica is based on his eudaemonist theory of natural law, and is identical with his conception

1 Cf. my In den Strijd om een Christelijke Staatkunde, I, XV (A.R. Staatk. driemaand. orgaan, 1e jg.) pp. 142 ff.

2 Chr. Wolff, Jus Naturae VIII, 1, § 117; here he speaks of a real ‘collisio legum’ between his principles of natural law and the basic principle of his theory of the State: ‘Salus publica suprema lex esto’. He cuts the Gordian knot with his construction of an emergency law of the State: ‘Necessitas non subditur legi’.

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of the purpose of the State embodied in the social contract. In his opinion the public interest consists in the vitae sufficientia, tranquillitas et securitas¹. This view was oriented to the absolutist idea of the police-State that the ‘enlightened despots’ in Prussia and Austria tried to realize.
As far as I know, Kant was the first Humanist philosopher who tried to give the idea of the salus publica an entirely new meaning, which was anti-absolutist and non-eudaemonistic. The eudaemonistic conception of the public interest was in conflict with Kant's practical idea of autonomy.
According to Wolff, who is here in line with Aristotle, the State should procure all the commodities its citizens need for their temporal well-being and perfection, insofar as the smaller communities of family and kinship cannot provide them. This was the only conception of the adage ‘Salus publica suprema lex esto’ which was supposed to guarantee a rationally justified constitution. But Kant breaks with this eudaemonist conception. According to him the idea of the salus publica can have no other meaning than that of a constitutional principle containing the a priori juridical norms which ought to be realized as a duty prescribed by a categorical imperative. The contents of these juridical principles are found in Kant's conception of the law-State and its idea of the trias politica². We saw, however, that this idea of the law-State does not approach the internal structural limits to public law but is essentially an individualistic civil law idea. In Kant's conception the internal structure of the State is reduced to a mere organizational form for the creation, the maintenance, and the judicial application of private civil law (the organized form of the legislature, the police and the administration of justice)².

The idea of salus publica should be oriented to the structural principle of the State, else it will become the instrument of an unbridled State-absolutism, or the embodiment of an arbitrary conception of the external content of the State's task. In spite of all theoretical misconceptions of this principle it has a universally valid meaning, internally delimiting all real political activity of the State.

The positive contents of this principle, however, are dependent on an intricate complex of variable socio-cultural conditions.

1 Jus Naturae VIII, 1, § 2.

2 Met. Anfangsgründe der Rechtslehre 2er Teil, 1er Abschnitt § 49 in fine (Grossh. Wilhelm Ernst Ausg. V, p. 439).

2 Met. Anfangsgründe der Rechtslehre 2er Teil, 1er Abschnitt § 49 in fine (Grossh. Wilhelm Ernst Ausg. V, p. 439).

The salus publica and distributive justice.

In its qualifying juridical aspect the public interest implies the typical public legal measure of distributive justice which requires a proportional distribution of public communal charges

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and public communal benefits in accordance with the bearing power and the merits of the subjects¹. In his book La Responsabilité de la Puissance Publique, the French professor of constitutional law Paul Duez has especially pointed to the significance of this public legal standard in the administrative jurisdiction of the French Conseil d'État. But it is of a universal import with respect to the whole internal public administration and administrative legislation. And as a legal principle of the public interest it clearly contradicts the erroneous opinion that administrative law is only a formal juridical frame-work for the pursuing of communal aims.

The salus publica, thus conceived, is a political integrating principle binding all the variable political maxims to a supra-arbitrary standard. It binds the entire activity of the State to the typical leading idea of public social justice in the territorial relations between government and subjects. Externally the task of the State cannot be delimited in a universally valid way, because the body politic, as a real organized community, functions in all the aspects of temporal reality. In principle, it is impossible even to exclude the State from the spheres of morality and faith. The State may promote the interests of science and the fine arts², education, public health, trade, agriculture and industry, popular morality, and so on. But every governmental interference with the life of the nation is subject to the inner vital law of the body politic, implied in its structural principle. This vital law delimits the State's task of integration according to the political criterion of the ‘public interest’, bound to the principle of

1 Kant, and the Humanistic teachers of natural law before him, did not understand the original Aristotelian sense of the idea of distributive justice. This idea originally bore on the internal communal law of the State, and not on private civil juridical relations as intended in Kant's idea of law as a normative principle of juridical coexistence. We have shown in an earlier context that even the Aristotelian conception of commutative justice is not to be understood in an individualistic sense. Kant, however, understands by iustitia distributiva or ‘austeilende Gerechtig-keit’ only such justice as is administered by a civil judge, as an impartial instance created by the ‘general will’ for deciding private legal disputes. Cf. Met. Anfangsgründe, I §§ 39 and 41.

2 Remember that in case the modern State gives financial support, this is done with revenues from taxation levied from its citizens by means of governmental coercion. State-support is therefore something quite different from that given by a private association for the promotion of sciences or the fine arts, because in associations the members give support out of their own free will.

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sphere-sovereignty of the individuality structures of human society.

The internal political activity of the State should always be guided by the idea of public social justice. It requires the harmonizing of all the interests obtaining within a national territory, insofar as they are enkaptically interwoven with the requirements of the body politic as a whole. This harmonizing process should consist in weighing all the interests against each other in a retributive sense, based on a recognition of the sphere-sovereignty of the various societal relationships.

To give a concrete example, we will consider the administrative juridical regulation of the many-sided concern of public health. This is a real concern of the public legal sphere of the State which, as such, is not qualified by a non-juridical aspect. The particularity of the subject matter of this administrative legal regulation is its concern with the bio-social structural aspect of the national community. Nevertheless, the regulation itself ought to be guided by the public legal principle inherent in the ‘public interest’.
No doubt such a positive regulation is intended to serve a particular political purpose, viz. the improvement of public health. This purpose in itself does not differ from the aims of private societies for the improvement of national health. But this part of administrative law, as well as all the relevant executive measures taken by the organs of the State, has an internal, public juridical qualification. The internal structure of administrative law makes it obligatory on the government always to weigh the various private legal interests carefully against each other, and against the ‘public interest’, in a retributive sense. These private interests must be harmonized and integrated in the public juridical interest. This is not required in the case of private societies for the promotion of public health, whose structure has a non-juridical qualification, and which are not founded in military power.

The civil law-sphere of the State.

The internal public law-sphere of the State has its typical correlate in the sphere of civil law as a private common law (jus commune). Every communal legal sphere is correlated with inter-individual legal relationships. But in addition to its correlation with the typical international relations of a public law character, the public communal law-sphere of the State has a typical correlate in an inter-individual legal sphere which is unbreakably bound to the structure of the body politic.

It is true that private common law does not immediately develop within the framework of the State so long as the undiffe-

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rentiated societal relationships have not yet been completely conquered. The Carlovingian State did not succeed in replacing the ancient barbarian tribal laws by a common private legal order. This body politic lacked stability, and before Charlemagne's organization of the public administration could be followed by the development of a private common civil law, the republican empire collapsed.

The Roman republic started with an elevation of the primitive ancient inter-gentilitial law of the Quiritian tribes to a civil law bound to Roman citizenship. The lex duodecim tabularum was nothing but a description of old customary rules and was on the same primitive level as the barbarian lex Salica described under the reign of the Merovingian king Chlodovech.

It was only under the influence of the ius gentium that the idea of a common private law developed. Initially this ius gentium did not exceed the boundaries of a law containing the common ingredients in the legal customs of the old Italian tribes. But gradually it emancipated itself from the primitive tribal inter-gentilitial law. In keeping with the expansion of the Roman city-State into a world-empire, the ius gentium assumed the characteristic of an integrating world-law founded on the principle of the legal equality of all free men, as legal subjects in the inter-individual legal relationships. It was this private world-law which the classical Roman jurisconsults connected with the Stoic conception of the ius naturale.

The Stoic idea of natural law in principle broke through the classical Greek idea of the city-State as the perfect natural community. It proclaimed the natural freedom and equality of all men as such. It is true that the Roman ius gentium did not entirely satisfy these principles of freedom and equality, insofar as it maintained slavery; nevertheless, it constituted an inter-individual legal sphere in which every free man was equally recognized as a legal subject independent of all specific communal bonds, even independent of Roman citizenship. This was the fundamental difference between the undifferentiated Quiritian tribal law and the private common law.

It was within this legal sphere that the undifferentiated authoritative proprietorial right, contained in the dominium ex iure Quiritium, was dissolved into a ‘bonitary’ ownership lacking any authoritative character. Under the influence of the ius gentium the term pater familias, which in the ancient Quiritian tribal law meant the quality of domestic chief, was in its civil

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legal use transformed into a simple nomen iuris designating nothing but the abstract quality of a legal subject, belonging to every free man as such.

If we consider only the fact that the ius gentium even emancipated the function of legal subject from Roman citizenship, the question may arise as to whether this common law had anything to do with the structural principle of the State. One might suppose it was much more related to the Stoic idea of a temporal community of the whole of mankind. But we have seen in an earlier context that this universalist idea did not correspond to any structure of individuality in which a temporal community can only be realized.

To answer the question asked above, we should consider that the ius gentium could only become a real common private law by abstracting the legal relationships regulated by it from any specific non-juridical qualification. It may be that the Roman societas, as a contract of common law, took its origin in the Roman familia, later on oriented itself to occassional contractual cooperations for the purpose of economic profit or speculation, and finally to durable economically qualified undertakings. Nevertheless, its common law rules neither interfered with the internal sphere of the family, nor with that of industrial or commercial life. The same thing can be observed with respect to the other contracts regulated by the ius gentium, to the jura in rē of the latter, to the common law rules concerning family law and hereditary right, etc.

The inner nature of the Roman ius gentium.

The common private law was only led by natural law principles of justice, the ‘nature of the matter’, legal security, and equity, in their application to the inter-individual legal relationships of men as such. In this respect it was indeed the typical private legal correlate of the public communal law, which equally lacks a specific non-juridical qualification and is ruled by the principle of public interest. In addition, the ius gentium was a typical system of legal rules destined for the decision of lawsuits by the common courts of the State. As to its formal juridical source it was praetorial law during the classical era of Roman jurisprudence. In its typical character as an integrating private common law it could not develop outside of the frame-work of the res publica, which was only able to realize the typical principles of the ius gentium. This realization was doubtless a matter

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of public interest, although the Roman lawyers emphatically established that, as to its inner nature, the common private law did not pertain to the res publica but to the interest of the individual legal subjects in their inter-individual relationships. The public interest was concerned with the private common law insofar as the res publica, by means of an impartial common jurisdiction, could prevent a complete desintegration of private law and a revival of the ancient undifferentiated legal spheres; for the latter were incompatible with the State's monopolistic organization of the sword-power and the public legal authority.

In this respect the sharp distinction between public and private law was a vital concern of the res publica. By controlling the jurisdiction over all private law-suits, in as much as they pertained to the sphere of common private law, the State was able to prohibit any attempt on the part of private power-formations to usurp an exclusive authority over the subjects of the body politic. Since the common private law was also sharply distinguished from all internal private legal spheres of a typical non-juridical qualification, its formation was by the nature of the case bound to the res publica. Outside of the latter there was not any room for an inter-individual common legal sphere based upon the natural law principle of equality of all free individuals as such. As to their inner nature the non-political societal relationships nowhere corresponded to this principle. But with respect to the State this principle was the natural correlate of the principle of the public legal equality of its subjects as to their common subjection to the public authority.

The distinction between jus civile and jus gentium was doomed to disappear, since under the influence of the praetorial law the former lost its material coherence with the archaic Roman tribal law and was almost completely accommodated to the jus gentium. In addition, Roman citizenship was to an ever increasing degree attributed to peregrines. In the classical period of Roman jurisprudence the victory of the jus gentium over the jus civile was already decided. Justinian's codification abolished the last remnants of the ancient civil law, which had long lost any practical significance.

It is true that, as to its material content, the formation of the private common law, at least in the classical period of Roman jurisprudence, was not due to the legislator but to the Roman lawyers. In this sense it was doubtless ‘Juristenrecht’. But the work of the jurisconsults was bound to the system of actions

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formed by the praetor. And it was by means of these actions that the State retained the legal control over the private common law-sphere, which apart from the res publica was doomed to disappear.

Legal history shows that this bond between the idea of a private common law, in the sense of the jus gentium, and that of the res publica is not an exclusive peculiarity of the Roman legal system. There is not any instance to be found of a private common law, in the sense defined above, which has developed outside of the State.

It may be that the Roman legal tradition has exercised a considerable influence upon the development of private common law in the modern continental States of Europe where the legislator has codified its rules. But in England the influence of Roman law was only small. Nevertheless here, too, a civil law-system has developed based on the essential principles of juridical equality and freedom of all individuals in their inter-personal civil legal relations. Here this development took place by means of a material transformation of the feudal law into a common private law. And it was brought about by the formative activity of judicial organs of the State, viz. the common law courts and the supplementary equity jurisdiction of the chancellor. The classical English jurists considered this common civil law as the expression of natural justice, just as the Roman lawyers had looked upon the jus gentium as the expression of the jus naturale.

We could also point to the Scandinavian States whose common civil law has not undergone the influence of the Roman ius gentium.

The radical difference between common private law and the undifferentiated popular or tribal law.

Under the influence of the Historical School the erroneous conception arose that common civil law was nothing but the ancient folk- or tribal law, developed in a technical sense by the jurists. This view was opposed to Bodin's idea of the sovereignty of the legislator with respect to the formation of civil law. The truth is that there is a radical difference in nature between primitive folk-law and the highly differentiated common private law; the latter could only develop after the material destruction of the undifferentiated primitive society of which the popular or tribal law was a juridical expression.

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And this destruction was due to the rise of the State as a real res publica.

Irrespective of the question as to whether the common private law has been codified by the legislator or has been preponderantly formed by the courts of the State, it is by its inner nature a legal sphere bound to the body politic. And the original competence to its formation cannot belong to any other organized community but the State. By means of this common private law the body politic can bind in an enkaptical way any specific (non-juridically qualified) private law to the principles of inter-individual justice, legal security and equity. But the internal spheres of these specific kinds of private law, qualified by the non-juridical leading function of the societal relationships to which they belong, remain exempt from the competence of the State. In the introduction to the general theory of the enkaptic structural interlacements we shall show that this thesis is not an arbitrary assumption due to a subjective political conviction. It will appear that it is rather founded in the structural conditions of every differentiated human society, which cannot be disregarded with impunity.

The State as an instrument used by the ruling class in human society to oppress the other classes. The depreciation of the classical idea of public interest and the civil legal principles of freedom and equality in positivistic sociology.

That the classical conception of the private common law was dependent on the classical idea of the State as a res publica, is also indicated by the fact that a denial of the latter was always accompanied by a denial of the former.

The Humanist natural law doctrine of the XVIIth century, insofar as it was oriented to the Roman legal tradition, absolutized the State's common private and public legal sphere. Starting from Bodin's concept of sovereignty, the adherents of this doctrine strove after a new legal order in which no law should be recognized that was not to be subsumed under one of these two legal orbits. The result was that this view of law lost contact with social reality. As soon as it is forgotten that the civil legal principles of freedom and equality make sense only in that relatively small sector of the private legal relationships which lacks a specific non-juridical qualification, these principles seem to be nothing but the result of metaphysical speculation. And

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as soon as it is forgotten that the principle of public interest has a typical juridical qualification bound to the inner structure of the State institution, it seems to be nothing but a mask for the interests of a ruling social class.

This may appear from the view of the French founders of positivistic sociology. Radically breaking with the natural law doctrine, they at the same time abandoned both the classical conception of the State as a res publica and the classical conception of the ius gentium. How did they arrive at this negative conclusion?

We have seen that the classical Greek and Roman view of the res publica identified the latter with the whole of human society, as it presents itself within the territorial boundaries of the State. This was the reason why all sociological problems were treated in the framework of political theory. This tradition was continued in the political works of Bodin and Montesquieu.

It was the liberal economical theory which, allied with the Lockean natural law doctrine, broke with this traditional conception, and made a sharp distinction between the State and the non-political civil society. The latter was exclusively considered from the economical viewpoint as a system of free market relations. But its foundation was the private civil property, whose organized maintenance and protection was viewed as the chief aim of the political association of individuals. The State should not interfere with this ‘civil society’, unless to prevent the formation of monopolist market positions, which disturb the natural operation of economic laws.

It was this ‘civil society’ which drew the special attention of St. Simon and Auguste Comte. But they fully realized that the economical viewpoint embraces only an abstract aspect of human society. The latter does not only display economically qualified relationships but also such of a so-called ‘ideal’ character, as science and philosophy, the fine arts, ‘religious’ communities, etc., and its foundation is the family. What is the place of the political organization in this society as a whole? This was the first question that intrigued the French founders of positivist sociology.

St. Simon was struck by the fact that since the beginning of the French revolution until 1815, France had been provided with ten different constitutions, whereas society cannot change so rapidly. From this he concluded that the constitution, which regulates the political form of government, cannot have the essential

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and central position in human society assumed by the natural law doctrine. In his opinion the real political changes are much rather dependent on the economical factors in ‘civil society’, which are the real foundation of the political relation of authority and subordination, and on a change of the ideas, to which perhaps St. Simon (and in any case Comte) ascribed a leading and integrating rôle in human society.

This meant a complete reversion of the classical view about the relation between the State and human society. According to St. Simon and Comte, the body politic is only a secondary product of ‘civil society’ in its economically qualified relationships. The ‘leading ideas’ of societal life are by no means the natural law ideas of the classical and modern political theories, which had no inner coherence with the factual condition of society. The latter does not exhibit that natural freedom and equality of all men which the speculative jurists supposed to lie at the foundation of the civil legal order. Nor can there be any truth in the classical conception of the State, with its military foundation, as an institution of the public interest. The truth is that civil property gives rise to class differences and class contrasts and that political authority always belongs to the ruling class.

In order to give politics a scientific foundation, it was deemed necessary to extend the natural scientific method (so successfully applied by Galileo and Newton to the natural phenomena), also to the investigation of the societal relationships. The latter should, therefore, be taken in their rude factuality, apart from any normative viewpoint. Only by tracing the general natural laws to which society is subject, both in its relatively static condition and in its dynamical process, can sociology provide politics with a scientific basis. In itself this was completely in keeping with the science-ideal of the Enlightenment in the so-called empiricistic trend.

But the new sociology (this name was introduced by Comte) intended to synthesize the natural scientific method with the universalist historical mode of thought of the Restoration. Society should be viewed as an organic whole, all of whose parts are interrelated, in contradistinction to the individualistic conception of societal relationships. According to Comte, the historical method is the specific sociological method; but it is not to be conceived in the irrationalist sense of Romanticism. It is much rather the highest specification of the general natural-scientific mode of thought. Its aim is the discovery of the general

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empirical law of societal development. And this law was supposed to be that of the three stages, viewed as a law of continuous social progress. From a military type ruled by ‘theological’ ideas, human society proceeds to an industrial type whose truly leading ideas will be developed by positivist sociology. The intermediate stage is that of the dissolution of the theological ideas by metaphysical concepts which lack any coherence with the beginning industrial development and its intrinsically positivist mind. As during this metaphysical stage society is deprived of integrating leading ideas, there arise revolutionary tensions culminating in the bloody French revolution.

According to Comte, States arise during the theological stage when the theological ideas have assumed a polytheistic character. They display a strongly organized military type. Especially the Roman State was an organization of conquerors. The prisoners of war are no longer killed since the economical interest of the conquerors is better served by making them slaves. Thus the legal order of the military State sanctions the distinction between rulers and slaves, which is also the foundation of the economic process of production. The relative significance of the military State is that it accustoms its subjects to discipline and division of labour.

Christian monotheism brought about the medieval separation between the priestly and the secular power, which in classical Greco-Roman antiquity had been united. So the spiritual power of Christianity could penetrate the whole of medieval society. It restricted war to a defensive function, whose social organisational form was the rule of the knight over the domain he could protect, i.e. feudalism. At the same time the spirit of Christianity succeeded in bringing about a gradual transformation of slavery into a colonate, and finally its influence led to the complete abolition of the latter in the medieval towns.

The personal freedom guaranteed by the towns gave rise to industrialism, i.e. a system of free production of commodities, which in the metaphysical stage initially developed independently of and in opposition to the military State, until since the latter part of the 17th century the latter begins to favour industry as well as the fine arts and science. The condition of society during this metaphysical period is ‘inorganic’, for lack of a central spiritual power and truly integrating leading ideas. It is, however, the positivistic stage which will bring about a new

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organic condition of society. Positivistic philosophy will become the new spiritual power which will lead society by its integrating ideas. The political power will lose its military character and be transferred to the industrial entrepreneurs. St. Simon had already predicted that in this third stage of societal development politics would completely turn into economics: government, i.e. the rule over men, will be replaced by an ‘administration of the common interests’, i.e. a conscious direction of the economic process of production according to an organisational plan¹. This is to say that the State in its proper sense will disappear.

But together with the State the civil legal order, as a private common law, will lose its proper meaning. Comte emphatically argues that positivistic philosophy will introduce moral principles into the relations between labourers and employers which have until now been lacking. Social duties will take precedence of private rights². Though Comte rejects communism, he conceives private property exclusively as a social function bound to the aim of an organized and directed economic production³. In the positivistic stage the capitalists will consider themselves exclusively as administrators of the social capital⁴. The political organization corresponding to the industrial type of society in the positivistic stage will be no longer a national State but a universal European political community⁵, whose ‘political’ character will gradually be replaced by a moral bond of solidarity⁶.

There is not any room in the future industrial society for a civil law order in its classical sense, because there is no room for the State with its intrinsically public legal relation between government and subjects. The disappearance of the latter necessarily implies that of the former.

1 Oeuvres de St. Simon et d'Enfantin (Paris, 1865-1876). Vol. XXI

2 Cours de phil. pos. (3th ed. E. Littré, Paris 1869) t. VI pp. 268 ff., pp. p. 151; Vol. XXXIX pp. 129 ff., 136 ff., 143, 154. 511, 515, 520, 522.

3 Discours préliminaire, p. 147.

4 Cours VI, p. 511.

5 Cours V, p. 446; VI, p. 169.

6 ib. V, pp. 304 ff.; VI, p. 446.

The Marxian view of the State and of civil law.

From a dialectical historic-materialist standpoint orthodox Marxism arrived at the same conclusion. The State, viewed as

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an instrument of the struggle between the classes, will disappear in the future communistic phase of social development, when all class-distinctions have been abolished. Society will arrive at this ultimate condition after a transitional phase of socialism in which, by means of the power apparatus of the body politic, the united world-proletariat will destroy the capitalist class and enforce the socialization of the means of production. And the expiration of the State will imply the expiration of the legal order of the body politic, both of its public law order and of its private civil law, which are nothing but the precipitation of the economic class-interests of the bourgeoisie.

Marx was completely aware of the essential rôle which the idea of the ‘public interest’ plays in the classical conception of the State. He was strongly influenced by Hegelian philosophy whose dialectical-idealist view of the relation between the ‘civil society’ and the State he only reversed in a so-called historic-materialist sense. In his Philosophy of History, Hegel had already shown a deep insight into the inner tensions of ‘civil society’ in its economically qualified relationships.

In this society the antithesis between the particular economic interests of the classes cannot be reconciled into an ultimate synthesis. It is only the State, as the highest revelation of the ‘objective spirit’, in which all particular interests can be integrated into the real communal interest of the societal whole as ‘ethical substance’.

In Marx the State, in the sense of res publica, becomes an ideological supra-structure of the only real, economically qualified ‘society’. In his work on Historical Materialism he parallels the State with religion. The latter devises a kingdom of heaven to escape from the misery of earthly life. Similarly the State, as an institution of the public interest, is an ideological escape from ‘civil society’ torn by its class struggle¹. Engels argues that when in primitive society a conflict between classes presents itself for the first time, it becomes necessary to separate a sphere

1 Der Historische Materialismus I, p. 244. (Die Frühschriften hrg. von S. Landshut und J.P. Maijer, Leipzig 1932): ‘Religiös sind die Glieder des politischen Staates durch den Dualismus zwischen dem Leben der bürgerlichen Gesellschaft und dem politischen Leben; religiös indem der Mensch sich zu dem seiner wirklichen Individualität jenseitigen Staatsleben als seinem wahren Leben verhält, religiös, insofern die Religion hier der Geist der bürgerlichen Gesellschaft, der Ausdruck der Trennung und der Entfernung des Menschen vom Menschen ist.’

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of the general interest, distinguished from that of the particular concerns. This separate sphere is the State. But since in the economic struggle of the classes the idea of a common interest is illusory, the State is necessarily an ideological whole. Seemingly concerned with assuring equal rights to its subjects, it can in fact only be serviceable to the particular interests of the ruling class¹.

It is true that neither Marx nor Engels have denied that the State, as an ideological supra-structure, can to some degree influence the historical-economic process of society. Dialectical Historical Materialism does not reduce the State to a mechanical product of the economically qualified societal relationships. It leaves some scope to ideological factors. But this does not detract from the Marxian view that the State, as a res publica, and its civil legal order, with its principles of freedom and equality, are mere ideologies. The real social infra-structure of the latter is nothing but an organization of coercive power serviceable to the ruling class and the private property of the bourgeoisie. From this historic-materialistic viewpoint Engels, too, announced the inevitable extinction of the State in the communist society of the future: ‘The management of things and the direction of the processes of production will replace the government of men. The State will not be abolished, but it will die out’².

That according to the orthodox Marxian view the disappearance of the body politic necessarily implies the disappearance of any civil legal order cannot be doubted. Civil law was generally considered to be unbreakably bound to the capitalistic system of production and the economic interests of the bourgeoisie. It was based on private property. And Marxism completely accepted the doctrine of Locke that the State was founded for the purpose of an organized protection of this ‘innate human right’³.

1 F. Engels, Ludwig Feuerbach (Stuttgart 1903), p. 51.

2 F. Engels, Herrn Eugen Dühring's Umwälzung der Wissenschaft (1878), p. 302/3: ‘An die Stelle der Regierung über Personen tritt die Verwaltung von Sachen und die Leitung von Produktionsprozessen. Der Staat wird nicht “abgeschafft”, er stirbt ab’.

3 Bebel, Die Frau und der Sozialismus, p. 340. Here it is argued that the State only came into existence with the rise of private property and its concomitant, the contrast beween social classes. The State is the organization and power for the protection and maintenance of private property (‘das Eigenthum schützende und aufrecht erhaltende Organisation und Gewalt’). When distinctions of class and relations of power have vanished, the State will disappear as a matter of course.

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Locke ascribed to this right such a central position that he even subsumed under it the other innate rights to freedom and life. In his earlier period Rousseau, too, defended the opinion that the body politic was only founded for the sake of protecting private property, although his appreciation of the latter was quite different from Locke's. In his Discourse on Inequality (1754), he argued that the right of property arises from a sanctioning of the crime of forceful seizure, and that therefore the State is the source of the increasing inequality of men and of the class-contest between the poor and the rich. This thesis reappeared in Proudhon's initial qualification of property as ‘theft’. It was due to the liberalist economic theory that the common private legal order of the State was considered to be unbreakably bound to the economically qualified relationships of civil society. This meant a complete denaturation of this legal sphere, which, as such, appeared to be characterized by its very lack of a specific non-juridical qualification.

And the French, Dutch and other codes of civil law had indeed initially deviated from the essential legal principles of this private common law by an extremely poor regulation of the labour contract which gave the employers a privileged position and sanctioned the economic exploitation of the labourers.

No wonder, therefore, that Marxian sociology considered the private and the public legal sphere of the State as an ideological supra-structure of the economically qualified infrastructure of ‘civil society’.

The dispute about the possibility of a socialist civil law in the Bolshevist legal theory.

In the Bolshevist legal literature the question has been amply discussed as to whether civil and public law is in the nature of the case of a bourgeois character, or if a socialist civil and public law is possible. In truth this discussion concerned law as such because law and State-law were identified. The question had become acute since the N.E.P., which temporarily again allowed private commerce, had given rise to the civil law code of 1923 and other codes. The older Bolshevist legal school denied the possibility of a really socialist law. Its most prominent representative, Pasjoekanis, had emphatically argued that law, and especially civil and penal law, is unbreakably bound to commodity exchange from which it derives its determining principle of equivalency. This implied that the transition from the equivalent

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distribution (everybody receives the equivalent of his labour) to the communist distribution (everybody receives what he needs) necessarily leads to the expiration of law.

The State arises when the class-organization of power embraces a market community of sufficient extent. As protector of the exchange relations it becomes public power. State and law are consequently forms of ‘civil society’. The proletariat is urged to use them as long as there is not yet one single planned economy. As long as there exist market-relations between the State industries, civil law and public law cannot disappear. But they can never be transformed into a socialist law. The technical rules for the coordination of the Soviet-economy which will replace them are sometimes called ‘economic law’. But when they lose any public coercive character it makes no sense to retain this name. This view of Pasjoekanis' was indeed in accordance with the ‘Leading Principles’ of the Penal Law of the R.S.F.S.R. of 1919, which emphatically declared that law, as a function of the State, will in the last instance be destroyed by the proletariat.

Nevertheless, the conception of this prominent Soviet-jurist and his adherents was fundamentally rejected in the standard-work The Law of the Soviet State (1938), written under the guidance of Wysjinskij, and apparently inspired by Stalin's policy of intensification of the Soviet State and its law. Wysjinskij argues that all Soviet law is ruled by the same socialist principle, and that it is perfidious to divide it into a bourgeois sector of civil law and a socialist sector of economic ordering law. The civil law which protects the property of the toiling labourers is as much socialist as the economic law. This meant a decisive turning point in the bolshevist theory of civil law, and the adherents of the old theory were urged to revoke their theses¹.

1 Cf. the interesting thesis of G. Kuijpers, De Russische Problematiek in het Sowjet-Staatsbeleid (1954), pp. 135 ff.

The Soviet civil code of 1923 and its ruling principle. The influence of Duguit.

This dispute is very interesting from the viewpoint of the inner nature of civil law and its intrinsical relation to the State as res publica.

The first article of the civil code of 1923 contains the fun-

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damental principle which rules this Soviet code. It establishes that civil rights are protected by the State insofar as they are exercized in conformity to the socio-economic aim for which they have been granted by society. This introductory article betrays the indirect influence of the famous French jurist, Léon Duguit, whose sociological theory of law and of the State was strongly dependent on Emile Durkheim's positivist view of social development explained in his work De la Division du Travail Social.

Duguit vehemently attacked both the classical conception of the sovereign State and the ‘individualistic’ classical idea of civil law as a private common law founded on the natural legal principles of the freedom and equality of men. In keeping with Saint Simon and Comte, he denies the human rights of the natural law doctrine. The entire idea of subjective rights is, according to him, of a metaphysical origin. It should be replaced by the positivist sociological concept of ‘social function’. There exists only ‘objective law’ which is not the creation of the State, but has its real origin in the laws of solidarity which rule human society.

Durkheim was of the opinion that in primitive societies this solidarity is of a mechanical character and reveals itself as a solidarité par similitude, i.e. a uniform pattern of socio-psychical feelings, representations and social behaviour urging itself upon the individuals by the mechanical pressure of the ‘collective consciousness’. In differentiated societies, on the other hand, this solidarity assumes an ‘organic’ character as a solidarity caused by division of labour (‘solidarité par division du travail’). The ‘solidarity by uniformity’ finds expression in a so-called ‘segmentary’ pattern of societal organization whose articulation displays similar parts. The ‘solidarity by division of labour’ gives rise to an ‘organic’ pattern of differentiated societal organization according to different industrial and occupational syndicates, each of which fulfils a particular social task or function. Whereas the legal order of a primitive society displays a preponderantly penal type, that of a differentiated society assumes a preponderantly contractual and restitutional type. The process of social development is realized along lines of differentiation. The territorial division of the State is nothing but a residue of the primitive segmentary type of social organization. It will be replaced to an increasing degree by a functional division according to the different branches of socio-economic service.

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On the basis of this view of societal development which he accepts without taking over Durkheim's idea of a collective consciousness, Duguit developed his theory concerning the transformation of the State and of civil law. According to him the State is not a res publica, in the sense of an organized sovereign community endowed with a legal personality. It is nothing but a factual relation of force between stronger and weaker individuals. The former impose their will on the latter by means of mechanical coercion. As such they have no single legal authority or competence nor can they lay claim to obedience in a normative sense. Rulers and subjects are equally subject to the objective law, which is exclusively social law (‘droit social’) originating from the solidarity of societal life, independently of their will. In a society whose solidarity is dependent on division of labour this law is composed of socio-economic rules, and customs of propriety (moeurs) or ‘moral’ norms of human behaviour. Because of their preponderant import for the maintenance of social solidarity, such rules may be elevated to the ‘highest’ level of social norms, viz. to legal norms. It is the feeling of justice which gives them this legal normative character. This axiological feeling, though subjectively expressing the individual's autonomy, is nothing but the psychical reflex of objective laws of solidarity deserving sanction. The legislator cannot create any legal norm. He can only establish existing standards of objective law.

Thus Duguit proclaims the ‘sovereignty of law’ from a naturalistic sociological viewpoint, just as the Dutch jurist Krabbe had done from an ethico-psychological, and Kelsen from a normological point of view.

The juridical problem of competence seemed to have been completely eliminated. If law is a spontaneous reflex of the societal relations of solidarity, it does not need human formation by competent organs. Then there can no longer be a fundamental problem concerning the mutual relation between the original spheres of competency that the traditional legal theory had eliminated by attributing sovereignty to the legislator.

The Historical School had already taught that law is not made by men after a rational pattern of natural law but that it is an organic product of historical development, having its original source in the national mind and the people's conviction of juridical propriety. But it had restricted its romantic doctrine concerning the spontaneous growth of law to the primitive stage of folk-law (‘Volksrecht’). As to the further phases of develop-

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ment it recognized the necessity of formative organs, viz. the jurisconsults and the legislator. The Germanist wing of this school (Beseler and Gierke) added to this the organs of the free corporations, which form an ‘autonomous social law’ distinct from traditional private civil law and from public law.

In fact the conception concerning the spontaneous growth of law is a romantic or (in its positivistic turn) a naturalistic misinterpretation of the nature of legal norms. We have shown in the general theory of the modal spheres that the necessity of human formation by competent organs is already implied in the modal structure of the legal norms. And the fundamental problem concerning the mutual relation between the original spheres of competence to law making, urges itself upon a correct observation of the legal phenomena by the structural diversity displayed by any differentiated society. In his voluminous work Traité de droit constitutionel, Duguit was obliged to recognize the formative factor in law. He did so by distinguishing between normative and constructive legal rules: ‘Legislation’, so he observes, ‘...does not create objective law, but it is doubtless an important factor in its formation’¹. And the problem of the relation between the civil legal sphere and the non-civil legal sphere of industrial life reappears in its full importance when Duguit, in line with his program of law reformation, engages in outlining the necessary transformation of the traditional civil private law and public law, resulting from his view of the sovereignty of ‘social law’. He does so in the deceptive form of a simple description of the factual tendencies which are to be observed in the legal development since the latter half of the XIXth century. Then it appears that, notwithstanding Duguit's view concerning the merely metaphysical character of the classical ideas of the jus naturae et gentium and the State, there did exist an individualistic civil law and a public law, based upon the ‘metaphysical’ principle of human rights and upon the classical idea of the State as an authoritative res publica, respectively. Then the collective contracts, the customary stipulations, and the standard agreements in industrial law are alleged to prove that the private autonomy in contractual legal intercourse, which was a basic principle of the French code civil, has been gradually transformed by the factual evolution of human society.

Thus Duguit's view of the ‘sovereignty of law’ turns out to mean nothing but the sovereignty of the typical industrial legal

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sphere which should replace the genuine civil legal sphere of the State. And the ‘transformation’ of the State, which he conceives in accordance with the view of Durkheim, is tantamount to the abolition of the body politic in its proper sense.

Duguit's idea concerning the social function of law implying the denial of subjective civil rights of men was not generally accepted by the sociologically oriented students of civil law without reserve. They realized that the abandonment of the concept subjective right would mean a frank abandonment of civil law itself. Thus they strove after a compromise. The egoistic civil rights should be viewed as private rights granted by society on the condition of their being exercized in accordance with the socio-economic function to which they were considered to be subservient. This conception was amply elaborated by the famous French jurist Louis Josserand in his work De l'Esprit des Lois et de leur Relativité (1924), and laid at the foundation of his theory concerning the abuse of rights¹.

It is this conception which had already found expression in the first article of the Russian civil code of 1923 before Josserand published his book. Is it compatible with the essential fundamentals of civil law as a common law? Certainly not. We have seen that the latter does not permit itself to be bound to a specific non-juridical purpose which is supposed to qualify its inner character.

In this respect it is important to note that the Dutch Supreme Court (Hoge Raad der Nederlanden) in a constant judicial view has rejected the criterion of abuse of civil rights assumed by Josserand. The negative criterion handled by this Court, according to which an abuse is present when a civil right is exercized without any reasonable interest only with the intention to hurt another person, is the only criterion compatible with the inner nature of civil law, as an inter-individual jus commune.

The first article of the Russian civil law code indeed binds private rights to the socialistic economic politics of the State. Insofar it is really a socialist code, which has transformed civil law into a social law with a specific economic qualification. The inner nature and structure of a typical legal sphere

1 It is true that he accepted a small category of rights (les droits non causes) which were supposed to have no social function. But this is not relevant in this context, because this category does not pertain to real subjective rights. The same holds good as to his third category of ‘droits à esprit altruiste’.

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is beyond human disposal. Meanwhile the Soviet State continues to exist. It has neither been transformed into a communist society nor into a syndicalistic organization in the sense of Duguit. The State industries are real industrial organizations enkaptically bound by the body politic in the most narrow way, since it is the State itself which is the proprietor of the means of production and which has assumed the function of entrepreneur. But they are no more intrinsical parts of the State than the private enterprises whose existence the N.E.P. has allowed. We can only say that this State follows a totalitarian policy which has no room for civil freedom as supposed by a private common law.

The socialist State, however, can only exist so long as it remains bound to the structural principle of every body politic, i.e. as long as it is qualified as an authoritative public legal community typically founded in a monopolistic organization of the power of the sword. A public legal order remains essential to it even when a private common law with its fundamental principles of civil freedom and equality is lacking.

For this very reason both Lenin and Stalin fully realized that a really communistic community in the orthodox Marxian sense is incompatible with the State institution. In this future community, in which indeed the economical function of a planned production will replace the public legal function, in its typical leading and qualifying rôle, the State is necessarily doomed to disappear. When by a perfect plan of coordination of all its branches the process of economic production will have reached such a level of intensity that everybody can gratuitiously get what he needs and the bourgeois mind will be completely replaced by a real communist spirit, there will be no need at all of a coercive State apparatus.

This is Utopia; it is alien to reality, because it does not know the real root of all evil. But it is at least a consistent Utopia.

The so-called political pluralism.

On this point orthodox Marxism is theoretically much more distinctly alive to its consequences than ‘political pluralism’. The latter wants to dissolve the State into a federation of mutually independent syndicates or corporations, each administrating a particular branch (function) of public services according to an economical viewpoint. These corporations are to stand up for

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the particular interests of their own separate services. The ‘political function’ proper which has to weigh the interests of the whole against each other, would have to be organized separately¹. This pluralism keeps talking of a ‘State’², although in principle it wants to eliminate the structure of the latter from the internal administrative activity of the projected syndicalist federation.

There is no awareness of the inevitable ‘economic monism’³ that will result from its principles which leave no room for a real State. The opinion of the French syndicalist Edouard Berth: ‘l'Etat est mort’⁴ is the inescapable consequence for every ‘political pluralism’ in the sense meant here.

1 Cf. my Crisis in de Humanistische Staatsleer, p. 155, and the literature quoted there.

2 Cf. Laski, A Grammar of Politics (1925), pp. 72 ff. This writer criticizes the political pluralism of guild-socialism. His critique is, however, not fundamental since, from his socialist point of view, he also strains the economical aspect in the structure of the body politic. He defines the State as ‘the body which seeks so to organize the interests of consumers that they obtain the commodities of which they are in need’ (p. 69). The State is distinguished from other ‘associations’ only by the coercive nature of its membership, and by its territorial character. Notwithstanding the addition of these specific characteristics, this view continues to seek the typical leading function of the body politic in the economical aspect. This fact appears from the argument adduced for the territorial criterion: ‘The interests of men as consumers are largely neighbourhood interests; they require satisfaction for the most part in a given place(!)’.

3 This term is from Prof. Kung Chuan Hsiao in his excellent book: Political Pluralism. A Study in Contemporary Political Theory (1927), pp. 122 ff.

4 i.e. ‘The State is dead’. Cf. Léon Duguit, Le droit social, le droit individuel et la transformation de l'Etat (Paris, 1908), p. 38/9. Duguit is also an adherent of ‘political pluralism’.

The fundamental importance of our structural theory for the theory of constitutional law, the general theory of the State, and practical politics. The structural idea of the State cannot be used in a rationalistic deductive way.

We cannot use the theoretical idea of the structural principle of the State, as it has been explained above, in a rationalistic deductive way. Neither can we do so with that of the structural principles of the other societal relationships. For in an actually existing body politic the invariable structural principle assumes

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a relatively variable positive shape. We can understand the positive realization of the structure of the State only in its coherence with the variable historical-political situation, and never apart from its enkaptic structural interweavings.

It is only in the latter respect that the relative truth of the view can be recognized that the body politic is always liable to the influence of class interests. But it is certainly incorrect to reduce the State to an instrument of these particular interests. The truth is that no real body politic can exist if it would indeed completely set aside its inner nature as a res publica. The famous German sociologist Lorenz von Stein, who was at first strongly influenced by the theory of St. Simon and the French socialists, realized this when he remarked later on that by its inner nature the State will always try to elevate itself above class interests. If not, it would dissolve itself into the economically qualified societal relationships of ‘civil society’.

The insight into its invariable structural principle is therefore fundamental both for the special sciences investigating the body politic in its different modal aspects, and for the general theory of the State; it is also of fundamental importance for practical politics.

In my book De Crisis in de Humanistische Staatsleer I have shown that the theory of constitutional law was led astray by eliminating the structural principle of the State-institution. The introduction of the formal-juridical method into this theory was bound to result in an empty juridical scholasticism.
A large number of fundamental problems can only be theoretically elucidated with the help of a real structural theory of the State, e.g., the problem of sovereignty; that of the juridical sense of the parliamentary system; the theory of the basic rights; the juridical conception of administrative law; the difference between administrative and civil jurisdiction, etc.
I pointed out that the ‘sociological political theory’, insofar as it tries to study the real life of the State with the aid of naturalistic methods, eliminates the real structure of the body politic. This ‘sociology of the State’ is therefore no theory of the State. As to practical politics I tried to show that the influence of a wrong view of the body politic is evident in many a conception of ‘organic representation’ and of ‘organic suffrage’. In a separate treatise devoted to the latter subject I examined the appeal to the political position of the medieval craft-guilds as an example of ‘organic representation’¹. Then it appeared that any such appeal to these

1 Het Vraagstuk van het organisch Kiesrecht in een nieuw Stadium. (Almanak van het studentencorps N.D.D.D. aan de Vrije Universiteit, 1935, pp. 105-122).

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guilds is based on a lack of insight into their fundamentally different internal structures as industrial organizations, and as political components of a medieval town. In the latter capacity the guilds had political domination founded in military power. This fundamental structural difference was in most cases apparent in the distinction between industrial members and political members. Different categories of the latter had nothing to do with the industrial community of the craft-guilds. We shall revert to this subject.

§ 4 - The structural principle as it expresses itself in the different aspects of the state-institution, and the christian idea of the body politic.

The structural principle of the State necessarily expresses itself in all the aspects in which this societal institution functions as a real unity. Our analysis will start with the moral function. The qualifying juridical function has already been amply discussed, and we will postpone the discussion of the function of faith to the end of this section. The reason is that this latter function presents particular difficulties connected with the idea of a Christian State, which we had better treat as a separate theme.

The expression of the structure of the State in the moral societal function of the love of one's country. State and nation.

Does the State as such function in the moral law-sphere? No doubt the (moral) love of country displays an internal societal structure not reducible to the inter-individual relationships in the moral meaning of love. There are, however, two different objections to be made against the statement that the structure of the State expresses itself in this typical bond of love.

First of all it may be argued that love of country may assert itself in opposition to the State. We may refer to the re-awakening of patriotism in the nations incorporated into the French empire by Napoleon I. The oppressed nationalities at last rose on the oppressor. Their struggle for freedom was a strong stimulus to the Romantic conception of the ‘national spirit’, as a primary datum of nature, of which the national State is merely an outward manifestation.

In this context we should also pay special attention to the first occasion of Herder's discovery of national individuality. During the important years of his stay in he town of Riga, Herder came into contact with the Lettish folk character (‘Volks-

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tum’), which made a deep impression on him and suggested his idea of nationality. In the case of the Letts, the people's individuality had no political structure, for there was no Lettish State. As Herder remarks in his essay on Ossian, he had first noticed the expressions of the indestructible peculiarity of this folk in its language, songs, popular dances and customs, notwithstanding its tyrannical oppression in a cultural and political respect¹.

He was the first to consider the nation as a ‘natural organism’ with an entelechy of its own, a vital purposive force, in sharp contrast with the artificial organization of the State. It was this conception which inspired the doctrine of the Historical School concerning the ‘national spirit’ as the real source of culture. This irrationalistic Romantic view found its antipode in the rationalistic political conception of nationality prevailing in the natural-law ideas of Rousseau and the French Revolution.

Although the former was doubtless right insofar as it rejected a simple identification of a national unit with a State, it has not really increased the insight into the nature of a national community.

The latter cannot be approached with the aid of a biological analogy. In the second Volume we have elaborately explained that there is an intrinsic difference between a primitive folk community and a nationality, whose historical aspect of individuality can only develop in the anticipatory direction of time. This implies that a nationality cannot be of an undifferentiated character. It is not folklore which can lay bare its characteristic traits, since this specific branch of ethnology is unable to explain the real integrating potency of a nation. In the last instance the ethnical particularities may strongly differ within one and the same nation.

The so-called supra-functional view of a national community, as it is defended by Gurvitch and other modem sociologists, is not able to clarify our insight. It is strongly influenced by the irrationalist and universalistic conception of the Historical

1 Hermann Oncken, Nationalitätenbewegung des 19. Jahrhunderts, in his Nation und Geschichte (Reden und Aufsätze 1919-1935, Berlin 1935), p. 308/9 - quotes Herder's words: ‘Lebendige Reste dieses alten wilden Gesanges, Rhythmus, Tanzes unter lebenden Völkern...denen unsre Sitten noch nicht völlig Sprache und Lieder und Gebräuche haben nehmen können.’ [Living remains of these old wild songs, rhythms, dances in living nations... whom our manners and customs have not yet entirely been able to deprive of language, songs and customs.]

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School, which impedes a critical structural analysis. In what sense can we speak of a national science, national fine art, a national industrial life, a national Church, etc.? Does this really mean that there exists an all-inclusive national community, which as such is independent of any organization? If so, why has nobody succeeded in discovering any tenable criterion of such an all-embracing national whole?

The reason is that an unorganized all-inclusive community cannot exist within the structural horizon of time, because in the nature of the case it would lack any structure of individuality which alone makes a temporal individual whole possible. An irrationalist universalism cannot uphold the illusion of an all inclusive national community without levelling out the fundamental difference between the geno-typical structure of a nation and its enkaptic interlacements with other societal structures of individuality. In addition it does not sufficiently distinguish a nation from an ethnical unit. The term ‘national’ in its geno-typical sense refers to the inner nature of a national community. But it may also mean a particular variability type which other societal relationships assume in their enkaptical function within a national unit. It is therefore necessary to account for the geno-typical characteristics of a nation.

Community of language or religion¹ or natural descent are certainly no inner geno-typical characteristics. They are only of an occasional pheno-typical character, and for this very reason they have always proved to be insufficient to define the inner nature of a national unit. A nation is not a natural community in the sense defined earlier. It is the result of a political formation which presupposes the differentiation and integration of human society. The typical character of a nationality has always been formed in a struggle for its internal political integration and for its international legal acknowledgement as an independent political unity. Well, nobody has succeeded in describing the individuality of a national character in an adequate way. The reason is perhaps that this individuality can only be approached in a pheno-typical way because it does not display itself but in the full complexity of the enkaptic intertwinements between a nation and the other societal relationships.

Are the individual traits of a nation indeed the same in its

1 The term religion is of course not used here in its central religious sense, but in the current sense of a system of faith and worship.

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individual political life, in its relation to fine arts, science, ecclesiastic life, industry and commerce, etc.? This must be true if the irrationalist and universalist view of a nation as a supra-functional and all-inclusive community is right. But at this point we should remember that such irrationalism elevated the subjective individuality of a national character to a norm of its historical development. As this is not really possible it replaced the individual traits of a nationality by an ideal normative image of its ‘true’ individuality. And the unity of this image was only an idealistic construction, especially because no single effort was undertaken to give a precise description of this ideal image. The famous German lawyer, Rudolph v. Jhering, who in his work Geist des römischen Rechtes indeed tried to give a description of the individuality of the Roman national character without any idealization, defined it as ‘the mind of disciplined egoism’. But in fact he took into account only what he supposed to be the national spirit of Roman law since the time that it was no more than a primitive folk law. And even in this restricted sense his conception of the Roman national mind was untenable since he interpreted the primitive Roman tribal law from an individualist point of view, which is incompatible with the very structure of a primitive society.

As to the geno-typical characteristics of a nation the state of affairs is quite different. Here we have to do with a differentiated structural type which lacks the complexity of a pheno-type. In this sense a nation is a people (and not merely a group of persons of the same nationality within a foreign country) which has become conscious of its internal political solidarity irrespective of its eventual ethnical differences. The present Dutch nation was not born before the common political trial of the Napoleonic rule melted together the different provinces, which formerly could never conquer their particularism.

A real nation never lacks a political organization, but it may be that the latter has not yet attained to the position of an independent State, or that it has lost this position. Nevertheless, State and nation have the same radical type, and every national community has the potency to become a real State. This explains why, at least in a democratic constitution, the so-called ‘pouvoir constituant’, i.e. the original political competence, can only belong to the nation. But this is not to be understood in the sense of the people's sovereignty as it was conceived by the Humanist natural law doctrine. For this supposed sovereign people was nothing

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but a mass of individuals united only by the construction of a so-called social compact. It was nothing but a speculative ideology lacking any contact with political reality.

It is possible that initially a State embraces different nations. But if it does not succeed in integrating this difference into a higher national unity, it contains in itself the germ of political dissolution. The former Danube-monarchy is a striking instance of the inner weakness of a pluri-national State.

It is not necessary to go further into the relation between State and nation to get an insight into the structure of individuality of the moral figure of ‘love of country’. In the present context it will suffice to say that in any case ‘love of country’ is entirely dependent on the political structure into which country and nation have been organized. Love of country is not identical with love of an ethnical group of people, nor with the biotically founded love of the land of one's birth alone. The strong manifestation of patriotism in a struggle for freedom (like the Dutch eighty years' war with Spain, or the American war of independence against the British mother-country) is for the benefit of a rising State which has been given a provisional organization.

Exclusively as a political organized unity under a provisionally constituted or still existing government can a nation turn on a foreign usurper, either manifestly or underground. Genuine love of country always displays an internal political structure, especially when it opposes domination by a foreign State. A would-be patriotism does not know the subject of its love when it ignores the internal structure of the life of a body politic and a nation. This patriotism pictures its beloved as a chiliastic ideal of gentleness, but as soon as the State (the existing or the rising State) demands from its subjects their sacrifice of life and property, there is no longer any room for idealistic dreamers. Stern reality will show which love of country is genuine, and which is internally false. True love of country knows that its way may lead through blood and tears, and in its Christian manifestation it implies the painful consciousness that the State is instituted ‘on account of sin’.

The light-hearted, but in reality demonic joy in ‘the strong State’ with its powerful army is entirely in conflict with a Christian love of country.

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Is the State the subject or the object of love of country? The objective conception is impossible.

The second objection to the view that in love of country the State structure is subjectively manifest, is that the ‘native country’ can never be the subject, but only the object of this love. When I made my first attempt to investigate the individuality structures of human societal life, I thought that the qualifying function of an organized community must always be its last subject-function in reality, and that such a community can only have object-functions in the later law-spheres. I drew this conclusion from the example of subjectively qualified natural things. But I very soon had to give up this view as contrary to the entire structure of human societal relationships.

If this view were true, a community for social intercourse (e.g., a club) or an economic-industrial community could never function as a juridical subject. This consequence conclusively proves the untenability of the hypothesis.

In love of country we may consider the country (in the sense of a political territory) as the object; but the national community of the State as such cannot be an object. The members of the nation can only be bound together by love of country in the subjective structure of the State's people. The second objection to the view that in love of country the structure of the body politic finds its subjective expression thus proves no more to be founded than the first.

The internal limits to love of country, and the principium exclusae collisionis officiorum.

Its internal structural principle delimits love of country so that this love can never become an unqualified totality of love relations revealing themselves within other individuality structures. State worship is utterly un-Christian also in its unbounded exaggeration of love of country. This love is limited by its own internal structure in all of the extremely intricate interlacements with the love-relations in marriage, family, kinship, Church, local, and occupational communities, international relationships, etc. If these internal limits are ignored, love of country will become intrinsically false.

The Aristotelian view that love of country is a ‘higher’ form of love (‘friendship’, as it is called by Aristotle) than that in family and kinship cannot be true. An argument for this view seems to be that, when the members of the same family or kin-

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ship have a different nationality, the duty towards the State should prevail over the natural bonds of blood. But this does not at all prove that love of country is higher than the other forms of love. It only proves that within its own internal structural limits love of country does not recognize any rival. But exactly the same thing applies to other societal structures of love. The love among the members of the same Church, e.g., does not allow of competition on the part of love of country. The latter should never divide the members of the same Christian Church within the internal love-relations implied in the community of faith. Similarly the mutual love among the members of a family must never be dominated in the internal family relations by love of country. The typical political relations are not included in the internal family relations. There can be no question of a real collisio officiorum in the normative relations of love. Such a conflict is precluded by the cosmic principle of sphere-sovereignty within the individuality-structures, just as much as cosmological antinomies are precluded by the principium exclusae antinomiae.

But this does certainly not mean that a confrontation with the different duties of love may not give rise to extremely painful tensions in our subjective feelings. Nor does it exclude real conflicts caused by an excessive expansion of the moral claims of the love of country, or of those of other societal structures of love-relations.

The principium exclusae collisionis officiorum, just as the principium exclusae antinomiae, does not imply a denial of conflicts on the subject-side of societal life and temporal reality in general. It only excludes a subjectivist denial of the cosmic temporal order, and the elevation of antinomies to the rank of a dialectical law of reality itself.

Love of country and the problem of the international public relations.

The structural principle ultimately limits the internal integration on the part of the State to its own country and people. At this point the vast problem of the relations among the different States forces itself on our attention. The international political relations in which the State is involved are quite different from those between the State and non-political societal relationships, or from the function of the State in private inter-individual relations.

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We have rejected the dialectical basic motives in the prevailing political theories concerning the internal structure of the State, but we thereby did not mean to deny the possibility of a seemingly unavoidable conflict between ‘might and right’ in international politics. The internal structural principle of the State cannot offer a solution of such a conflict. For in this case the different States have external inter-communal societal relations to each other of a very special kind, which display neither the internal communal structure of the State, nor that of private inter-individual relations. Foreign policy remains bound to the internal structure of the State, but it has an international character and, therefore, it cannot be carried on according to the standards of internal policy. This was what John Locke had in view when he made a distinction between the executive and the federative power and subsumed foreign policy under the latter. The rules of private inter-individual legal intercourse do not suffice here. For in the first place the different States occupy very unequal positions of power in international life. And in the second place the chief interests involved in international relations are of a characteristically public societal nature.

This is why international conflicts involving the danger of war cannot be judged of according to a civil juridical standard, as Kant proposed in his individualistic project of a league of nations. Kant's idea of law, which lay at the foundation of this project, was exclusively oriented to civil legal intercourse. It had no room for the recognition of the essential nature of international relations which do not belong to this private civil sphere¹. There is no denying that there are international private relations for which the various States must devise international arrangements. But the dangerous conflicts in the international intercourse between States are always concerned with the essentially public interests of the latter, each of them vital to their own internal structure. Here the principle of the ‘reasons of State’, in the sense of an unbridled and egotistic pursuit of their own interests by the bodies politic involved in such a conflict, displays its most dangerous and alluring aspect. This is all the

1 Cf. my treatise Norm en Feit. Een critische beschouwing naar aanleiding van het geschrift van Mr Rozemond over Kant en de Volkenbond (in the review Themis, 1932, no. 2, pp. 1-60).

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more serious since this problem takes account of the individuality-structure of the body politic much more according to its foundation than does the individualistic natural-law view of the international relations.

During the whole history of the modern system of States since the Westphalian Peace until the second world-war no great power has been prepared to have questions of really vital interest withdrawn from its own sovereign final decision. The famous third chapter of the ‘Acte général’ of 1928 of the former League of Nations provided for obligatory arbitration in disputes about interests. But this provision did not materially alter the situation. Owing to the reference to the 38th Article of the Statute of the Permanent Court of International Justice, the arbitration mentioned above could only result in the maintenance of the formal ‘status quo’, in so far as no compromise was made. It was this international situation before world-war II which I had in view when in the first (Dutch) edition of this work I wrote: ‘So long as the pluralistic modern system of States continues to exist, there is no other peaceful settlement of disputes about the interests of the States than mutual consultation under the guidance of an international public juridical idea of inter-communal relationship. Conflicting interests should be harmonized on the basis of a mutual insight into, and at least partial recognition of each other's vital interests as each State's well-understood own interests. Added to this the members of the League of Nations should take effective action to prevent or stop wars as means of settling disputes. Recent experience, however, has been deeply disappointing, as far as the application of Art. 16 of the Covenant of the League of Nations is concerned. It has become clear how precarious is the international juridical position of weak States, if the old imperialistic spirit is allowed to persist in the international policy of the Big Powers.’

Meanwhile the post-war experience has opened some new perspectives at least for the democratic States of the West European continent. I do not mean that the Charter of San Francisco has really strenghtened the international position of the small States, as members of the new organisation of the United Nations, in comparison with their position under the Covenant of the former League of Nations. But I have especially in view the growing insight into the common military and economic interests of the West European States, which gradually pushes

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back the old individualist dogma of sovereignty and tends to a gradual realization of the federative idea.

I cannot think of submitting this extremely important and complicated question to a more thorough investigation in the present context. Besides, it falls entirely outside of the subject under consideration and would require a separate study. I could not omit to refer to it in passing, however, because I wanted to avoid the misunderstanding that I am absolutizing the internal structural principle of the individual body politic at the expense of the international public relations between the various States. The Christian view of the State must never capitulate to a naturalistic theory of the ‘raison d'État’ elevating the ‘sacred egotism’ of the States to a kind of natural law in international relations. Such a theory is intrinsically false and contrary to the individuality-structure of the States as well as to the basic structure of the international order.

The internal vital law of the body politic is not a law of nature but bears a normative character. A State can never justify an absolutely selfish international policy of the strong hand with an appeal to its vital interests. God has not given the States such a structure that, with a kind of natural necessity, they are compelled to carry on a Kain's policy for the sake of self-preservation. Only a blind man does not see that the vital interests of the nations are in a great many ways mutually interwoven. It is not the political structure of national life but the sins of the nations that have caused the individualistic selfish power of the States to dominate international politics.

In international legal relations the internal public juridical structure of an individual body politic is necessarily correlated with that of the other States in public juridical, inter-communal relations. Similarly the love of a particular country cannot fulfil the moral commandment in the international moral relations between the States without its counter-weight in international love of one's neighbour among the nations. Any absolutization of patriotism leads to a blind chauvinism, which lacks the true moral sense of love. It is an absolutely un-Christian thought that the commandment of temporal societal love of one's fellowmen is not valid in international intercourse between the nations organized in States. International relations are also subject to the moral law; they cannot be ruled by a purely egotistic principle. But the structure of the international norm of love is not identical with that of private moral intercourse between indivi-

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dual men. The moral relations between the States remain bound to the structural principle of international political relationships, which presupposes that of the body politic itself.

The norm of love can never require a State to resign itself to a foreign attack on its independence and to deliver its own subjects to the violence of a usurper. The moral duties of a body politic cannot be measured according to private standards.

The expression of the structural principle in the juridical forms of organization of governmental authority. The typical foundation of the different constitutional forms.

As to the expression of the structural principle in the juridical aspect of the State we have to add some remarks with respect to the typical juridical forms of the organization of governmental authority. The different constitutional forms depend on the latter. The distinction between autocracy and democracy is the most fundamental of all. These forms have a typical historical basis, and their character is determined by the manner in which the political power is organized; viz. either by the free initiative of the nation itself, which by suffrage and political representation (or eventually in a direct way) retains a continuous control over the government, or by an authority which has imposed a certain governmental form upon the people¹. But the variable positive juridical forms of organization of governmental authority remain absolutely determined by the internal structural principle of the State. This means that, e.g., an economic form of power as such can never be the typical foundation of the juridical form of organization of a government's authority. Only in the pheno-type of a constitution can a government's authority be typically interwoven in an enkapsis with types of authority founded in economic types of power. The insight into this state of affairs is also of fundamental importance for an enquiry into constitutional history, as well as for the theory of constitutional law, and for the general theory of the State.

In v. Haller's patrimonial theory of the State, e.g., monarchy was viewed as the normal and the oldest form of political organization, which was supposed to be always exclusively founded in large-scale land-ownership². This view has had a great influence

1 Cf. Heller, Staatslehre (1934), p. 246.

2 Cf. Restauration der Staatswissenschaft (2e Aufl.) Bnd. 3, p. 157: ‘Die ganze Geschichte bestätigt unwidersprechlich, was sich schon durch die blosse Vernunft beweisen lässt, dass nicht nur die Monarchien die ersten, ältesten und häufigsten Staaten waren, sondern dass die meisten Fürstentümer ursprünglich auf dem haus- oder grundherrlichen Verband oder dem sog. Patriarchat beruhen, alle anderen aber sich in der Folge nur durch dieses Verhältnis befestigen konnten’. [All history confirms beyond contradiction what can already be proved by mere reason, viz. that monarchies are not only the first, the oldest and the most frequent forms of the State, but that most principalities were originally based on the domestic community or on the seignorial relationship of an estate, a so-called patriarchy. All the others could only establish themselves later on by means of this relationship.]

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on the interpretation of the facts of medieval legal history, as v. Below has convincingly proved. V. Haller's patrimonial view of the State has also penetrated into the famous work Ongeloof en Revolutie of the Dutch Christian historian and statesman Groen van Prinsterer. In his description of the patrimonial conception of a kingdom under the feudal regime, and of the foundation of the political rights of the old estates on landed property, he thought he had detected the real historical fundamentals of the ‘Christian-Germanic State-idea’. And he opposed the latter to the classical republican idea of the body politic defended by the a priori natural law doctrine. Fortunately he abondoned this erroneous and reactionary view when he became acquainted with the writings of F.J. Stahl.
We have already remarked that the so-called democratic form of government of a ‘medieval town’¹, in its later stage of development, and the dominant position often occupied in it by the craft-guilds, was not typically founded in economical forms of power. When these guilds acquired political power, the latter was indeed founded in their military organization; their political structure was merely enkaptically interwoven with their structure as industrial organizations.
Their temporary dominating influence in the city-government was the result of political action, often of an actual revolution directed against an existing aristocratic régime, from which they extorted the control of the town. During the period of their greatest power, the Utrecht guilds acted as independent potentates, and entered into negotiations with foreign sovereigns. But the political and the industrial structures of these guilds were kept distinctly apart, notwithstanding their mutual interweavings: all the citizens of a town had to join one of the guilds, no matter what was their occupation or trade. They thus became ‘political members’ for the sake of their political rights².

1 Of course this terminology is not quite justified historically; we cannot really speak of ‘the medieval town’ in a general way. But we are discussing the general phenomenon of the guild-movement and its political importance for the city governments. This revolutionary movement displays, at least in its main traits, a fairly common character and is everywhere characterized by the same anti-aristocratic tendency.

2 Cf. J.C. Overvoorde en J.G. Ch. Joosting, De gilden van Utrecht tot 1528, 1e deel (1897) in the collection ‘Oud-Vaderlandsche Rechtsbronnen’. An excellent description of the Italian and German medieval guild-movement is to be found in H. Lentze, Der Kaiser und die Zunftverfassung in den Reichsstädten (1933).

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Naturally it cannot be denied that, irrespective of the specific form of constitution, particular economically qualified classes may gain a temporary hegemony in the government of the State. In the same way the franchise may be dependent on a property qualification. But these political privileges are never of a typically economical foundation, as was erroneously assumed by Aristotle when he characterized democracy as the rule of the poor. Economic types of power are never qua talis really political in character; they are at most interwoven with types of political power. The modern view of a social democracy, as it was especially propagated after the first world-war, uncritically assumed that we can apply the political forms of government to the family, the Church, the school or to an industry. But it levelled all the differences of the internal structures of human societal relationships¹.

1 This has been vividly described by G. Guy Grand in his book La démocratie de l'après-guerre, published after the first world-war.

The expression of the structural principle in the aesthetic aspect of the State.

The typical harmonious integration of the interests of nation and country, manifest in the leading public juridical function of the State's structural principle, refers back to the aesthetic function of the latter.

In antiquity Greek political philosophy paid special attention to this aesthetic structural aspect. The idea of public justice was mostly conceived aesthetically. In Plato's ideal State the idea of the τὰ ἐαυτοῦ πϱάττειν was aesthetical rather than juridical. According to this idea every citizen had to remain in his own social class in order to cooperate in his own sphere to the harmony of the whole.

In the second book of his Politica Aristotle requires politics to be a ‘symphony’. It is an art, and, as such, it must not contain any dissonance and should continue in the same key which produces harmony. In the time of the Romantics the exaggeration of the aesthetic motif reappears. This aestheticist view of the body politic would never have arisen, if the structure of

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the body politic did not have an aesthetic aspect making disharmony possible as well.

Calvin has also emphatically pointed out this aesthetic structural aspect. He calls the societal relationship of the State a ‘well-ordered condition’ and opposes it to the anarchical ἀταξία a ‘confusum et dissipatum chaos’. The State is a ‘pulcherrimus ordo’, in which prevails ‘symmetria, proportia’¹. Anarchy is not only objectionable in an ethico-political sense, as disturbing the community, it is also unaesthetical, because it is offensive to our aesthetic sense². But the State is not a work of fine art, it is not qualified by its aesthetic aspect. The typical foundation of its structure betrays its institution on account of sin. And this tragic trait is also inherent in the aesthetic aspect of the State.

1 C.R. 49, 503.

2 Cf. Bohatec, Calvin und das Recht (1934, Teudingen in Westphalia), p. 64.

The expression of the structural principle of the State in the internal sphere of political economy.

The aesthetic structural aspect of the body politic necessarily refers back in the foundational direction of the temporal order to the economic modality. The problem of ‘the relation between the State and economy’ has been posited on the immanence standpoint in as confusing a manner as that of ‘the relation between the State and law’. The confusion was due to a lack of insight into the relation between the modal and the individuality structures of reality. Even those writers who emphasize the plurisidedness of the State as a real ‘social organism’, in opposition to the individualistic theories, go astray as soon as they want theoretically to conceive of the relation between the body politic and the economic law-sphere.

As examples of such a confused and erroneous way of positing the problem I mention that of Ottmar Spann and Hermann Heller. In his interesting book Fundament der Volkswirtschaftslehre Spann summarizes his view of the relation between the ‘State’ and ‘economy’ as follows: ‘As an active part of economic life the State has meanwhile become a real element of economy and is within the latter no longer a “State”, but a capital of a higher order, the support of all economic activity, the instrument of all instruments - and therefore itself “economy”. With this social genus of “economy” a social genus like the body politic can as little mix, as food mixes

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with blood: the food must first change into “blood”, if it is to work like blood; else food remains an inactive foreign body in it’¹.
Here the entire economic structural aspect of the State is fundamentally denied. The State as such is only conceived of in an external teleogical relation to ‘economy’, and this latter is merely considered a means for the attainment of non-economic purposes, in this case for political aims².
Heller's way of positing the problem is equally wrong. Besides, he restricts it to the relation between the State and the typical capitalistic ‘Marktwirtschaft’³. He, too, conceives the ‘State’ and ‘economy’ as self-contained and equivalent functions of human society, each of them with relative autonomy. The State can only affect economic life from the outside. But Heller lacks the insight that the body politic has an internal economic aspect, in which its individuality structure finds expression, just as in its internal juridical and moral spheres. This internal economic sphere of the State is quite different from the free economic market relations in which the former is only enkaptically bound.

The structural principle of the State necessarily expresses itself in its internal economic aspect. This really political economic sphere can never be understood in terms of private inter-individual economic intercourse. The internal political economy is a territorial ‘Zwangswirtschaft’⁴, in which the economic function has been structurally opened in a typical direction to the public juridical leading function of the State. The system of taxation, as a typical political manner of economical provision of income and capital, forms the basis of the whole of the State's internal economy, and unmistakably displays a political individuality-

1 O. Spann, Fundament der Volkswirtschaftslehre (3e Aufl. 1923) p. 184; cf. also p. 28, 103 ff. The German text of the quotation reads as follows: ‘als wirksamer Teil der Wirtschaft ist er (i.e. the State) indessen wirklich Bestandteil derselben geworden und in dieser nicht mehr “Staat”, sondern Kapital höherer Ordnung, Beistand alles Wirtschaftens, Werkzeug aller Werkzeuge, also selber “Wirtschaft”. In die Gesellschaftsart “Wirtschaft” kann sich eine Gesellschaftsart “Staat” ebensowenig einmischen wie sich Speise mit Blut mischt: sie muss erst zu “Blut” werden um in diesem als Blut zu wirken oder sie bleibt wirkungsloser Fremdkörper darin’.

2 Op. cit., p. 60. Spann's definition of economy is: ‘Wirtschaft ist die rangordnungsgemässe Widmung von Mitteln für Ziele durch ausgleichendes und sparendes Abwägen... bei Knappheit an Mitteln’. [Economy is the devotion of means to ends according to a scale of needs ordered in conformity to a balancing and sparing mode of estimation... when there is a scarcety of means.]

3 Staatslehre (1924) pp. 211 ff.

4 Compulsory economy.

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structure. In this typical economic structure the system of taxation is subject to politico-economic norms of a communal character. In it the modal economic principle of a frugal administration of scanty means, in the alternative choice of their destination, according to a well balanced scale of needs, has been typically individualized and opened under the leading of the juridical idea of public interest.

The modal economic principles are not at all eliminated from the internal political economy: but here the question as to what (not how) is economic, is entirely dependent on the individuality structure of this typical economic sphere. The internal economic value of the material apparatus of a military and a police organization, of a network of roads, etc., for the political economy of the State cannot be measured according to the market value of the required goods and services, nor according to a certain marginal utility.

In the internal economy of the State it may be justifiable in an economic sense to deviate from the prices in the free market and from the principles of efficiency prevailing in a free economic enterprise, if such deviations are required by the politico-economic structural relations¹.

From the teleological viewpoint the entire economic sphere is considered to be merely a means for the attainment of non-economic purposes. But this view is subjective, and destructive to a correct insight into the internal structural relations in economy; for it excludes the question as to what is economic, from the ‘Wirtschaftstheorie’². Spann also does so.

1 Remember the expensive administrative services required by the juridically qualified ‘public interest’. These services must not be judged according to the profit earning efficiency-principles in a free enterprise.

2 Economic theory. The economic needs of the State are in principle dependent on its individuality-structure.

The integrating function of the State in the internal political economy and the exaggeration and denaturing of this function in the modern absolutist idea of the State's economic autarchy.

In an internal economic sense the State also performs a political integrating function, which is fundamentally different from that of economically qualified societal relationships, such as international trusts, cartels and the like. The positive contents of this task cannot be defined in a universally valid way be-

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cause of their variable character. There is a tendency in modern times to a large-scale ‘ordering’ of the whole of ‘national economy’ within the territory of the State. The idea of economical ordering and planning reveals a radical reaction to the old liberal idea of the free play of social forces in economic life ruled by a ‘natural order’, in which the State should not interfere. The entire development of modern Western political and economic life has resulted in abandoning the old liberal policy of ‘laissez faire, laissez passer’.

In itself this thought of ordering is congenial. But it may bring on all the dangers of the totalitarian idea of the absolutist State, if it is not subject to the control of the structural principle of the body politic. The economic integration of the State's population within its territory by means of a political ordering of non-political economic industrial life should remain under the leading of the juridical idea of public interest. The structure of the State necessarily requires this typical leading so that the internal sphere-sovereignty of the economically qualified societal structures will be safeguarded.

The tendency towards planning may be the result of a totalitarian policy, aiming at economic ‘autarchy’, the selfsufficiency of the national production with a view to increase the power of the State as an end in itself. In this case the State's task of economic integration will be fundamentally falsified because the typical leading function of the body politic is lost sight of. Naturally a complete economic autarchy of a State, however large it may be, is impossible, since it is excluded by the increasing economic interdependency of all parts of the world. But, as a politico-economic maxim of the totalitarian State, the principle of autarchy means that, within the territory of the body politic, the whole process of economic production is to be made serviceable to the policy of power. Then there is not any respect for the justified economic interests of other nations, nor for the internal sphere-sovereignty of the non-political societal relationships.

This autarchical principle was already defended by Fichte in his project of the closed commercial State. Its tyranny over economic life has been painfully brought home to various countries in the last economic world-crisis. Even its partial realization accelerated the dislocation of economic relations before the second world-war enormously. It is easy to see what dangerous effects it must have on States that are poor in raw-

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materials. The counterpart to the principle of autarchy, as the characteristic consequence of the modern idea of the national power-State, is an imperialistic foreign policy. It is, therefore, misleading when Rudolf Kjellèn defends the autarchical principle on the ground of his vitalistic-organic idea of the body politic by identifying it with the principle of the ‘individuality of the State in the economic sphere’. He puts it on an equal footing with the geographic individuality of the State's territory and with nationality revealing the demic individuality of the State¹.

In this sense the autarchical principle is intended as a general individualistic principle of economic policy valid for all nations; but as such it does not at all take their individuality into account. If carried through consistently, it means the dissolution of the whole intricate complex of international interlacements and mutual relations- of dependence in economic life. But then it appears to be nothing but a fantastic dream of power in the modern nationalistic political mythology².

Only as an example I mention the leading ideas of economic planning according to which the Italian fascist State intended to carry out its programme of economic integration. They have been summarized by Woldemar Koch in his book Die Staatswirtschaft des Faschismus³ as follows:
1. The idea of the maximum area for the production of foodstuffs for the growing population;
2. The idea of economic independence;
3. The idea of ruralization;
4. The idea of an equal economic development of the separate parts of the country.
The author does not omit to point out that these four ideas were directly or collaterally dependent on the idea of the ‘Potenza della

1 Rudolf Kjellèn, Der Staat als Lebensform (2e Aufl. 1917) p. 162.

2 Kjellèn shrinks back from this consequence. He writes: ‘Auch das autarchische Prinzip darf nicht zum Fetisch werden, dessen Anbetung gegen die Bedeutung und das Bedürfnis eines wirtschaftlichen Verkehrs zwischen den Völkern blind macht’ (op. cit. p. 166/7). [The autarchical principle should not be made into a fetish whose worship would blind us to the importance and the need of economic intercourse between the nations.]
But the real issue is whether or not the principle as such implies the individualistic exaggeration that in principle does not allow of any restriction. The entire notion that according to its internal economic structure the State is a ‘closed and self-sufficient organism’ has originated from an absolutization.

3 Die Staatswirtschaft des Faschismus (1935) p. 14/5 (Finanz. Forsch. hrg. v. Fritz Karl Mann).

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Nazione’ (the power of the nation). He rightly adds that Italy's practical policy could not strive after a complete autarchy but only after a restricted economic independence of foreign countries, and that even such a restricted autarchy was extremely difficult to realize: ‘For the one-sided dependence on foreign countries is founded in the natural basic conditions of the Italian national economy’ (p. 17). This is true, for Italy is poor in raw-materials, and as far as agriculture is concerned, the comparative costs assign to Italy the place of ‘a garden of Europe’. The developmental tendencies of Italian agriculture not affected by the State, favour exactly those branches of industry in which that country can boast of an advantage over other countries. This would entail a considerable amount of interweaving of Italian economy with the international effort to supply economic needs.
The carrying through of the German national-socialistic ‘völkische’ idea of autarchy in agriculture was to be accomplished by means of a compulsory organization of the farmers in a ‘Reichsnährstand’ and by the ‘Erbhofrecht’. Cf. Dr. Heinrich Stoll: Deutsches Bauernrecht, Mohr, Tübingen 1935.

The expression of the State's structural principle in the internal aspect of social intercourse.

In the social law-sphere of human intercourse, which is the immediate basis of the economic aspect, the internal structure of the State expresses itself in the whole system of typical forms of intercourse between government and subjects, in public ceremonies, in the special honours paid to national symbols, in the celebration of national festivals and days of commemoration, etc. The structural coherence between the internal function of social intercourse and the leading public juridical function, as well as with the typical function of power of the State, is manifest in the typical figure of national honour. An offence to the national honour is an offence to the individual State as a whole. It affects government, country and nation together as an integral unity, and can in no way be understood individualistically.

The meaning of such an offence cannot possibly be restricted to the aspect of social intercourse, but, as an infringement of the norms of this intercourse, it can only be understood from the point of view of the typical political structural principle as a whole. In this principle the public juridical community plays the leading part. In the internal life of the State the government must not allow such an offence to be committed with impunity. The entire structure of the individual body politic is concerned in such an offence, which in the last instance affects the honour of God as the Sovereign.

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But the national honour displays its most important implications in international relations. From antiquity down to the present day this honour has been recognized as a valuable matter in which the requirements of courtesy are interwoven with those of international law and with the prestige of the nation's power.

A violation of the typical norms of courtesy committed at a foreign court with respect to the State's ambassadors was already considered as one of the four casus belli in ancient Rome¹. The affront offered to Israel's ambassadors, sent by David to condole with the Ammonite king Hanun on the death of Hanun's father Nahas, was answered by David with a declaration of war and the annihilation of the united armies of the Ammonites and their allies, the Syrians². In modern times international courtesy in the refined manners of diplomacy is generally considered as an essential element in the international relations between the States. The slightest violation of these rules of courtesy are implicitly recognized as an embarrassing incident of international juridical and moral significance³.

From what we have said it appears once again that any effort to delimit the juridical and moral norms from each other by means of external criteria is doomed to failure. In the individuality-structure of human society the modal norms form an unbreakable coherence and are indissolubly interwoven. We cannot eliminate their internal irreducible modality, if we wish to have a universally valid criterion to distinguish the normative law-spheres.
Remember the internal disciplinary rules in the army with respect to uniforms, to saluting, etc. The individuality-structure of these internal political societal norms makes it impossible to understand their modal aspect of social intercourse apart from the internal public juridical disciplinary aspect qualifying these norms. But in a modal sense these aspects retain their sphere-sovereignty also in their individuality-structure. If we have not acquired an insight into their modal sovereignty within their own sphere, we cannot gain an insight into their individuality-structure.

From this it appears that in its internal aspect of social intercourse the State is also a typical integrating whole uniting a plurality into a unity. But in this structural function the State's

1 Titus Livius, Rerum Rom. ab urbe condita, libri IV, 19.

2 2 Sam. 10.

3 Cf. V.N. Dnimitsch, La courtoisie internationale et le droit des gens (1930), on the ‘incidents Tisza’ (26 May 1888) and ‘Philip Snowden’ (10 Aug. 1929), when the disregard of international courtesy threatened to disturb international relations seriously.

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integrating function remains as much typically limited by the structural principle as in its other structural aspects. This means that internal norms of human intercourse in other communal relationships, or those of private inter-individual relations, can never become component elements of the internal social norms concerning the body politic.

The State cannot abolish class-distinctions in the social relations of intercourse in modern society. These distinctions can only be integrated in the structure of political intercourse in a better or a worse way. The State cannot give a political structure to private social relations of intercourse. A compulsory political uniform manner of saluting, imposed on non-political social intercourse, cannot really be conducive to the unity of the nation. It can only rouse the aversion of free-minded people and has a ridiculous effect in the social intercourse with foreigners. The universalistic totalitarian idea of the State shows its mythological character also in the modal aspect of social intercourse.

The expression of the structural principle in the internal linguistic aspect of the body politic.

In the foundational direction the modal aspect of social intercourse refers back to the internal linguistic aspect of the structure of the State. The latter expresses itself here in a very elaborate system of objective symbols (standards, the national ensign, the national coulours, badges and insignia, the national arms, fixed formulae introducing official governmental documents, titles, etc.), realized in an objective thing-structure (symbolically-politically qualified), and depending on continual actualization by the government and its subjects. Smend called these things symbolical summaries of ‘material integrating factors’. The typical structure of the State's authority expresses itself symbolically in the titles and the badges of office of the bearers of authority.

The State may also have an integrating function with regard to verbal languages (‘Volkssprachen’), when more than one language is spoken by the nation. In the war of languages in Belgium the government had to take sides in an integrating manner, because the State also functions in the law-sphere of symbolic signification. But here, too, the governmental task of integration remains bound to the structural principle of the body politic, i.e. it remains bound to the leading of the juridical idea of public justice.

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When the nation has more than one language spoken within its territory, public justice requires the government to strive after peace between these languages. When in its internal policy a government tries to enforce a lingual integration by oppressing one of the competing languages, a particular national group will be tyrannized. Then the government exceeds the limits of its office and is guilty of détournement de pouvoir. Experience has shown that such a high-handed policy has always been powerless when a linguistic group puts up a strong resistance. The history of the Low Countries at the time when Holland and Belgium were united after the fall of Napoleon furnishes a striking example of a government's political failure in linguistic matters.

The expression of the structural principle in the historical function of the State.

The State's typical structural foundation is found in the historical aspect, in which the structural principle of the body politic expresses itself in the political cultural unity of the nation. In this cultural aspect of the body politic the entire all-sided concentration of the State's power remains typically based on the monopolistic organization of military power over a territorially limited cultural area, in the way explained earlier. The political cultural unity of the nation is indissolubly bound to the leading function of the State and can only in this way perform its individual historical task. Within this cultural aspect of its structure the integrating function of the body politic is directed to the national-political unity of culture. This unity should be realized and rank in priority to any possible group cultures within the national territory. For this purpose national museums are built and properly attended to; monuments are erected on the occasion of important national events; national festivals and anniversaries are kept; national history is made an obligatory educational subject for schools, measures are taken to promote art and science, insofar as the latter have a national pheno-type.

But the task of political integration remains bound to the structural principle of the State also in this case. Only in a political sense can the State realize the historical cultural unity of nation and country under the leading of the juridical idea of public interest, and while respecting the sphere-sovereignty of the non-political cultural circles. The non-political cultural

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communities cannot be shut up within the boundaries of the State; they have to perform an integrating task of their own of a non-political character.

The modern totalitarian idea prompted some States to make the historical formation of power in the non-political cultural circles subservient to the State's political striving after power. But we have shown in an earlier context that if science, Church, art, etc. are made into permanent component elements of a State's political concentration of power, the internal life of these cultural circles will be destroyed. The sphere-sovereignty of the non-political individuality structures cannot be tampered with, because it is founded in the divine world-order.

The logical structure of political communion of thought, and the integrating function of ‘public opinion’.

All the integrating functions of the State we have examined pre-suppose a political function of communal thought whose internal structure expresses the structural principle of this institution. In all the types of communities investigated hitherto we have discovered a specific logical structure of communal thought. This structure appeared to be incompatible with an individualistic autonomy of thought, and to be typically guided by the qualifying function of the societal relationship concerned. The internal family community, the internal marital community, etc., cannot be actualized without their typical communal structure in the thought of their members. This especially holds good for the primitive undifferentiated sibs and tribes with their rigid tradition.

Of course, the typical logical structure in the body politic does not actualize itself from moment to moment. But whenever government and nation manifest their internal societal unity, the peculiar logical structure of their typical political thought becomes at once evident. This does not mean that in this case all and each of the citizens reveal this structure in their political thought. In a modern State whose population has been rent with economic class-warfare, a degenerated party-system, strife between different national groups, these disintegrating factors can never be completely neutralized, not even at moments when the national political community of thought is most strongly concentrated.

But the central importance of ‘public opinion’ reveals itself

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in the structure of the national political community of thought. We should be mistaken if we identified the structural figure of ‘public opinion’ with the variable historical forms of its expression. Public opinion is not only of fundamental importance for the logical aspect of political thought, but for the whole organization of the political will of a nation. We cannot characterize ‘public opinion’ as a mere historical-political phenomenon revealing itself only in modern political life, and absolutely unknown in former times.

No doubt the influence of the press as an ‘organ of public opinion’ and, more generally, all kinds of technical means to guide public opinion, such as radio, motion picture and television¹, are modern. But the typical structure of a political communion of thought is constant and positivizes itself in variable forms wherever there is really a question of the political life of a State. Nor is it correct to say that ‘public opinion’ asserts itself only in a democracy and not in an autocracy. Never perhaps has ‘public opinion’ been considered so important as in the modern dictatorships with their autocratic leader-principle and their ceaseless propaganda to regulate and control public opinion. Public opinion does not one-sidedly arise from a politically amorphous mass with the government standing by as an interested spectator. On the contrary, it interweaves government and nation into an internal political coherence of thought. It cannot be understood individualistically, as if its bearer were an unorganized ‘public’, i.e. the total number of those who back this opinion and are willing and able to judge of it². It is formed under the guidance of prominent politicians who know the art of rousing the national conscience. Basing themselves on the national tradition they succeed in winning the leading national circles' acceptance of simply formulated political slogans.

In a parliamentary democracy the political parties are indeed also concerned with the organization of ‘public opinion’. But to my mind it is an error to conceive of public opinion as composed

1 Compare on this subject W. Albig, Modern Public Opinion (2nd rev. ed. New York, 1956).

2 Cf. Tönnies, Kritik der öffentlichen Meinung (1922), pp. 84 ff. Tönnies cannot appreciate ‘public opinion’ because he considers it exclusively in the light of his individualistic and rationalistic view of the ‘Gesellschaft’.

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of a number of opposing ‘public opinions’ formed and politically crystallized in the separate classes and parties¹.

A particular party-cry as such can never lay claim to the title of ‘public opinion’. The leading groups of the nation are the bearers of the national conviction, and only if they accept a certain political view can we speak of a genuine ‘public opinion’. In other words ‘public opinion’ has a necessary integrating function in political thought in so far as it transcends differences of party and of interests, and to a certain extent embodies the national political unity of thought². It is essential that such an integrating political thought has attained to a certain national political position of power. Then groups or individuals with views that deviate from those of the leading circles will feel their separateness as an isolation from the prevailing national mood. In the logical individuality-structure of public opinion this indissoluble coherence with its historical-political hegemony is expressed in the authority with which it imposes itself on political thought as a true national opinion. But the political function of power can only play a foundational rôle in this logical structure. The communal structure of an integrating mode of political thought assigns the leading rôle to the idea of public societal justice³.

From a metaphysical idealistic standpoint especially Hegel has stressed this fact, but we do not accept his speculative-dialectical conception. He holds that ‘public opinion’ contains the eternal essential principles of justice, the true contents and the result of the entire constitution, legislation and public condition in general, in the form of common sense (as the moral basis pervading everybody in the shape of prejudices), as well as the real needs and right tendences of reality⁴.

1 Cf. Heller, Staatslehre (1934) p. 181, who, however, also makes very good remarks on this subject.

2 A public opinion may of course be expressed as the popular conviction of some particular districts of the State (e.g., a borough, or a province). I am only discussing the structure of the national opinion of the State as a whole.

3 This is really a question of the idea as a subjective guiding principle in political thought.

4 Hegel, Rechtsphilosophie, p. 317: ‘die ewigen substantiellen Prinzipien der Gerechtigkeit, den wahrhaften Inhalt und das Resultat der ganzen Verfassung, Gesetzgebung und des allgemeinen Zustandes überhaupt, in Form des gesunden Menschenverstandes als der durch Alle in Gestalt von Vorurteile hindurchgehenden sittlichen Grundlage, sowie die wahrhaften Bedürfnisse und richtigen Tendenzen der Wirklichkeit’.

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But ‘public opinion’ in its logical individuality, as a subjective integrating political mode of thought within the structure of the State, is by no means the infallible interpreter of the supra-subjective normative principles of justice. Public opinion is a plastic figure requiring formation and may be led astray by the responsible political leaders. Nevertheless, the latter cannot act arbitrarily by merely bringing suggestive emotionality to bear on the ‘masses’¹. The ‘thought of the day’ should not at all be identified with ‘public opinion’, which remains bound to the historical tradition of a nation and has a normative character insofar as it is subject to the structural principle of the body politic.

The government has it own formative task with respect to ‘public opinion’, because it cannot govern in opposition to a truly national conviction. Every government needs the support of the latter to justify its policy in the national mind. Public opinion does not really govern, as the demo-liberal ideology tried to suggest²; but in its logical societal structure the national opinion has an integrating function in every State-relationship. Without public opinion the unity of the body politic cannot be realized.

The logical structure of public opinion is that of a strongly emotionally bound communal thought. Its internal logic remains immediately founded in the political structure of feeling and can never be understood in a merely functional sense.

1 Therefore every naturalistic-psychological ‘explanation’ of public opinion as a case of psychical mass-suggestion or slavish imitation, as Ratzenhofer has tried to give, is fundamentally erroneous; cf. his Wesen and Zweck der Politik (1893), I, pp. 188 ff.

2 This ideology was first formulated by the physiocratic school (cf. Heller, op. cit., p. 173). Mercier de la Rivière was the first to give expression to the doctrine of popular government in the ‘opinion publigue’, in opposition to the doctrine of absolutist monarchy. In this respect his ideology was a direct outcome of the natural law theory of the people's sovereignty.

§ 5 The expression of the structural principle in the pre-logical functions of the state-institution. the idea of a christian state.

The naturalistic sociological theories conceive of the State as a system of intensive psychological interactions; or as the

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‘chance’ of a unified (‘einheitliche’) physico-psychical process of human cooperation, oriented to the subjective idea of a normative coercive juridical order; or as a biotic organism; or as the product of a struggle of races or of social classes, explicable in terms of natural causes.

The criticism passed on these theories by Kelsen and his school from the standpoint of their formalistic juridical normological view of the State, is irrefutable to a certain extent. None of the pre-logical ‘natural aspects’ of the body politic can be understood without an appeal to its structural juridical organization. All these naturalistic theories show the same basic error of trying to approach the natural aspects of the State by means of a naturalistic conception of function. They are oblivious of the fact that even in the pre-logical aspects of experience the State presents itself as an internal unity whose political natural functions can only exist in a normative, juridically qualified individuality-structure. None of these pre-logical functions are a natural datum. They are all the product of a formative political activity, which of course is something quite different from an objective technical artifact made to order. Kelsen must be especially credited with having unmasked the naturalistic theories of the State as crypto-ethical political theories that have not at all been composed according to the method of natural science.

The psychical structural aspect of the State: the typical societal feeling of political solidarity.

The psychical structure of the State cannot really be conceived as a system of merely gradually stronger psychical interactions between individuals. If we leave the typical individuality-structure of the political feeling of national solidarity out of account, we can only agree with Kelsen's remark that ‘psychical interactions between individuals’ do not stop at the territorial boundaries of the State. These interactions, as such, can never give expression to the unity of the body politic. But the State cannot exist as a real unity without the modal aspect of feeling having realized itself in its individuality-structure. The political feeling of national solidarity is a social feeling that has been given a definite form in an opened meaning-structure. It binds government, country and nation together.

The structural principle of the body politic expresses itself in the internal sphere of political feeling in such a way that the foundational rôle is assigned to the societal feeling of national

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military power, and the leading rôle to the feeling of public justice with its implied feeling of authority and submission. This individuality-structure can only reveal itself in the opened historical and juridical anticipatory spheres of the psychical law-sphere. The modal feeling of power and that of justice here assume their typical individuality-structures. In the logical law-sphere the expression of the political structure also constitutes itself in the anticipatory spheres. Only a careful analysis of the modal meaning-structures enables us to understand the expression of the individuality-structures within a law-sphere. In a modal psychical sense the subjective feeling of political solidarity remains indissolubly related to the expression of the State's structure in sensory objectivity, i.e. to the objective sensorily perceptible aspect of the political organization.

The structural subject-object relation is also essential to the psychical societal function of the State; and the psychical interwovenness of government, country and nation remains bound to this subject-object relation.

The political feeling of national solidarity, as it is briefly analysed here, can no longer be grasped in a general (non-structural) psychological concept of function. It implies the feeling of solidarity of government, nation and country, and as such it cannot comprise foreign countries with their foreign governments and their foreign nations. Enkaptically, however, it remains interwoven with political feelings of international relations. Here the State also performs an integrating task under the leading of its qualifying public juridical function. But this integration, too, remains limited by the body politic's inner nature and cannot affect the non-political individuality-structures in the modal sphere of feeling.

The expression of the structural principle in the biotic aspect of the State. The political problem of races.

In the foundational direction the psychical structural function immediately refers back to the biotic aspect of the State-structure. The error of a biologistic conception of the body politic would never have arisen if the latter did not really function as a vital community of government, country and nation. As such it is, however, not a natural datum, but a structural aspect of political formation, which can never be conceived apart from the leading and the foundational function of the State. The State's territory also functions as an objective vital space of nation and

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government, but only as a politically organized and opened vital area. In this space the foundational and the leading functions of this societal institution express themselves in an anticipatory direction. According to this aspect the State really functions as a political form of life (Kjellèn) which, however, is not at all qualified as a natural macro-organism.

In the biotic space of the State we do not find an unbridled interplay of natural forces, or a biotic ‘struggle for life’ which does not observe any norms, but life displays a politically ordered structure here. The State's population is internally interwoven with the national soil, and in the long run a bio-psychic type may be formed. This type is not a mere product of nature but the result of formation in a particular political vital area.

Again the racial problem claims our attention here. I cannot enter into the different biologistic political racial theories in this book. Suffice it to refer to Erich Voegelin, Rasse und Staat (Tübingen, 1933)¹, to Goldstein, Rasse und Politik (4e Aufl. 1925) and to the excellent criticism of these theories made by Heller and Sorokin².

Recent political racial theories are inspired by the work of the Frenchman Count Gobineau, Sur l'inégalité des races humaines (1853), and are based on the thesis that there are three original main races (the white, yellow and black races) with different ramifications in constant primary or natural races (e.g., the Nordic, the Caucasian, the Alpine, the Mediterranian, the Mongoloid, the Proto-negroid races, etc.). These races are grounded in the biotic blood relationship and possess fundamentally different mental, political, and cultural dispositions and potentialities³. The constant biotic race is supposed to be endowed with a constant ‘racial soul’ and ‘racial mind’, identifiable by means of objective physiological and anatomical criteria (the colour of hair and eyes, face, and skin, cranial index, etc.). And these

1 Ch. 2, p. 36 ff.

2 Heller, Staatslehre, pp. 148 ff. Sorokin, Théories Sociologiques Contemporaines (1938), pp. 172 ff.

3 The existence of ‘primary races’ should not be a priori rejected for political reasons, as is done, e.g., by Boas, Kultur und Rasse and Luschau, Völker, Sprachen, Rassen. Only the political myth of the race is unscientific, especially in its anti-semitism. Another question is whether the hypothesis of the polygenetic origin of the human races is acceptable from the Christian standpoint.

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criteria were also used to distinguish the superior from the inferior races. Alfred Rosenberg based his entire ‘cultural philosophy’ on this racial theory in his book Der Mythus des XX Jahrhunderts (25 and 26th ed. 1934), with its glorification of the Nordic, or ‘Aryan’ race. This book was soon considered to be the ‘philosophical justification’ of Hitler's inhuman anti-semitic policy.

It is evident that this criminal political application of the biologist sociological race-theories fell completely outside of the boundaries of science. Nevertheless, Chamberlain's work Grundlagen des Neunzehnten Jahrhunderts (1899) was already permeated by a mystic pan-Germanism and a vehement anti-semitism, and Karl Pearson frankly defended the right of the ‘Aryan race’ to a complete expulsion of the ‘inferior races’.

But when we leave alone these political excesses and consider these theories from a scientific point of view, we must establish that any attempt to base the supposed superior mental, cultural or political qualities of a ‘Nordic’ race on criteria like colour and cranial index has proved to fail. In addition, the hypothesis of a polygenetic origin of the human races lying at the foundation of different theories of this kind, is a gratuitous assumption; and the assumption of an Aryan or Nordic race rests upon a fallacious ethnological conclusion drawn from a purely linguistic theory concerning Sanskrit as the common origin of the European languages. The chief point, however, is that the positivist biologistic foundation of the racial theories is incompatible with any axiological view of a ‘superior race’. Leading political theorists, such as Günther¹ and Wolff², implicitly admitted this.

They reversed their initial (biotically founded) racial concept with the assertion: ‘It is the mind which builds the body’, and with pathos they turned on materialism, naturalism and vitalism. The fashionable philosopher, H. St. Chamberlain, deemed every scientific definition of race to be superfluous in comparison with the feeling of ‘race in his own heart’.

This does not detract from the fact that there are considerable differences between the human races which have been estab-

1 Günther, Rassenkunde des deutschen Volkes (15e Aufl. 1930), pp. 426 ff.

2 Wolff, Angewandte Rassenkunde (1927), pp. 27 ff.

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lished in a scientific way¹. It is undeniable that up till now the cultural and political abilities of the negro have proved to be relatively small in comparison with those of the white and yellow races, though there are remarkable individual exceptions, and though we must not forget that hereditary dispositions are flexible and capable of disclosure by a good education.

This may give rise to very difficult political problems in States like the South-African Union where the ruling white race is confronted with a majority of primitive ethnical groups of black race, of mixed breed, etc. It is difficult to see how in the near future a real national political unity could arise in which all of these different racial groups are integrated. And here again it appears that the natural law ideas of the freedom and equality of men cannot be legally realized without an adequate historical political basis. Such a basis is certainly not present so long as a majority of black people are still in a condition of primitive culture. At the same time it must be established that the condition of such a body politic in which the majority of the people are placed under the guardianship of a white minority and are not really integrated with the latter into a national unity, is extremely precarious.

We have already observed that within the State's territory a particular national political bio-type may be formed in the long run on account of the biotic coherence of the successive generations. Then also foreign elements may be assimilated, if this type becomes strong enough in its development. This state of affairs is something quite different from what the naturalistic theories try to suggest. For here it is not the ‘blood’ that creates the nation and the State, but the very opposite happens².

However, this process is by no means a structural necessity in the biotic aspect of the State; it is only a variable phenomenon within the structure of the latter and does not occur at all times and in all countries. For the formation of secondary or cultural races, the political factor is only one of the many that are essential.

The typical biotic integrating function of the State consists in a political formation of the vital conditions for the totality of

1 Cf. R.B. Dixon, The Racial History of Man, N.Y. (1923) p. 518 and Sorokin, op. cit., pp. 223 ff.

2 Heller, op. cit., p. 159. Cf. also Liermann, Das deutsche Volk (1927), p. 28.

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the nation within the political living-space. This integration is to be brought about under the typical leading of the public legal principle of the ‘public interest’ (the domain of bio-politics).

As observed above, a real political racial problem can only arise when in the same State there exist more or less sharply isolated racial types that have not been assimilated in a bio-cultural respect. This is especially the case when they organize themselves as mutually enimical and isolated parts of the population (recall the racial problem in South Africa, or the negro problem in the southern States of the U.S.A.). This example clearly shows the close connection between the political integrating function of the State in the biotic sphere and the structural principle of this societal relationship. It also shows that the body politic is unable to bring about an absolute vital integration within the national territory. We also learn from this example how essential is the dependence of the political integrating activity on the normative leading function of the State. Owing to this dependence every policy of oppression directed to a particular part of the population is qualified as a tyrannical excess of power.

The various contrasting interests of the mutually hostile groups of subjects must be carefully balanced against each other according to the criterion of the public juridical interest. And this implies that also the different cultural positions of the ethnical groups within the political totality should be considered, though at the same time the cultural level of under-developed groups should be elevated as much as possible. By means of levelling individualistic-Humanistic standards of justice we can never solve a political racial problem.

*

In this way we might continue our analysis of the pre-logical structural functions of the State: the physical (the compulsory organization of energy), the phoronomic, the spatial and the numerical functions. However, our aim is not to give a complete theory of the body politic, but we want to explain the expression of the structural principle in the various modal aspects of the State-institution. Therefore we shall restrict ourselves to a general remark on these last four structural functions. The distinction between them may at first sight strike the reader as a little artificial, but it is none the less necessary. In these aspects the State

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has also subject-functions as well as in the psychical and the biotic aspects. But in the later law-spheres they are only to be referred to in an objective retrocipatory way. This insight is of importance to the general theory of the State, which we will demonstrate with the doctrine of the State's territory.

The theories about the State's territory and the methodical necessity to distinguish the modal aspects in the structure of the body politic.

There are principally three theories on this subject: 1. the object-theory which considers the territory merely as the object of a subjective right of the State; 2. the subject-theory defended by the organic doctrine of the State, which conceives the territory as an essential subjective component of the organism of the body politic, and holds that it can never be objectified. The territory is the ‘body’ of the State and the latter is hypostatized to a collective person; 3. the competence-theory identifying the State's territory with a territorial sphere of competence.
Each of these theories contains an element of truth, but by ignoring the structural coherence in the different modal aspects of the State's territory they are in principle incorrect.
The first of them considers the territory of the body politic one-sidedly according to the juridical subject-object relation. In this relation the territory can only be the object of a public subjective right of the State as a ‘legal person’. But it is a fundamental error to merge the structure of the State's territory entirely into this modal subject-object relation.
The second theory considers the territory as a subjective component of the personality of the State, and is right insofar as the State's territory in its original spatial structural aspect does function subjectively. This aspect is really interwoven in an essential structural coherence with the entire subjective unity of the body politic. Apart from the untenable metaphysical hypostatization of the State, this theory forgets, however, that the State's territory can function subjectively only in a single modal aspect. In the total structure of the State the territory has an undoubted objective juridical qualifying function and an objective historical foundation. In a modal juridical respect as well as in a structural theoretical sense the subject-theory is false, although it is perfectly correct to say that the State cannot be conceived individualistically apart from its territory.
The third theory ignores the whole of the structural subject-object relation in the State's territory, conceiving it exclusively in an abstract juridical way from its law-side. This theory is right insofar as in the juridical norm-side the State's territory only functions in the spatial analogy of a juridical sphere of validity, of a territorial legal sphere of competence. But this theory forgets that the juridical law-side of the territory is only meaningful in its coherence with the juridical subject-side. In the latter the State's territory functions only objectively. Here the juridical subject-object relation

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has an internal structural character which can only be understood from the supra-modal structural principle of the body politic.

Political geography and the structure of the State's territory.

From a structural theoretical standpoint the territory of the State is a totality which in the first place has an objective public juridical qualification. As soon as special sciences, such as political geography (Ratzel and his school use the term ‘geopolitics’), political history, or the science of constitutional law, institute an enquiry into the territory of the State, we are urged to ask according to which of the modal aspects they intend to consider its structure. In the political geometrical structure we find the figure of the boundaries, the extent, and generally the subjective spatial form of the national territory with its political central and its peripheral parts. They all occur in their disclosed political form and cannot be grasped apart from the objective physical, biotic, sensuous and later structural functions. In a modal sense the political geometrical structure remains distinct from all these functions. If this structure is ignored, all the modal structural aspects founded in it will lose their basis.

The prevailing tendencies in political geography do not theoretically take account of the structural principle of the body politic, but proceed along naturalistic paths. This science will have to orient itself to the structural principle of the State and to distinguish the modal structural functions of the State's territory in their sphere-sovereignty.

The expression of the structural principle of the State in the transcendental limiting aspect of the temporal order. The political function of faith.

We have now reached the most central point of our investigations, viz. the expression of the political structural principle in the last modal limiting aspect of the temporal order, that of faith. In faith this structural principle points to the religious root of the State-institution. At this point the problem of the ‘Christian State’ claims our attention. We can only discuss it here in a very concise and summary way, for an elaborate treatment belongs to the special philosophy of the State. We shall restrict ourselves to the structural problem.

The reality of a societal relationship cannot be shut off in the leading function of its social structure. In its full all-sided reality

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the body politic must also have a societal function in the law-sphere of faith.

Doubtless, the State is no more qualified as a community of faith than the marriage-bond or the family-relationship. But as little as the latter does the State permit itself to be shut off from the transcendental limiting function of the whole of our temporal reality. The character of all created being as meaning prevents such a seclusion, and in particular the fact that the societal relationships are structures of man's own temporal existence. The primary question is not how in the course of history the actual States have behaved in their function of faith, but how the divine structural law of their existence enables them to function as such in the modal law-sphere of belief. This is a question of the structural principle of the State expressing itself within the modal aspect of faith. We are not examining the influence of faith on the individual political lives of the separate human beings in the series of generations that have been united or will be united in a body politic. But we want to find out whether the State as such displays its structure as an organized community in the modal sphere of belief and how this structure can express itself in this modal aspect.

Is a Christian State possible? A false way of positing the problem.

Can the State only express itself in the aspect of faith in the sense of a ‘natural’ political belief in God? Can the State only live by the light of God's common revelation in created ‘nature’? Or should not the State rather imply a faith community which, in accordance with its divine calling, has to subject itself to the divine Word Revelation? In other words, should it not be a really Christian community within the limits of its political structure?

It is fundamentally wrong to identify this basic problem of every Christian theory of the body politic with the question about the relation between the State and a temporal institutional Church. Such an identification usually implies that the only possible manifestation of the Christian State is its subservience to the Church as an institution. Then the body politic has to use its power of the sword to suppress the promulgation of doctrines rejected by the Church as heretical. And, in addition, the State has to follow the leading of the institutional Church in all matters concerning the salvation of the souls of its citizens. But we have seen that this view is certainly not the outcome of a Christian

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way of positing the problem which starts from the radical Biblical basic motive. In this conception it is taken for granted that the State as such, i.e. in its internal essential structure, cannot have a Christian character. This latter must be imparted to it from outside by means of a teleological attitude of subservience towards another temporal societal structure, viz. the Church as an institution.

Such a conception is only compatible with the scholastic basic motive of nature and grace. The question about the relation between Church and State can only be correctly posited after one has gained an insight into the internal structural principles of these two temporal types of societal institutions. If it should appear that the structure of the State as such cannot express itself in a Christian faith-community, then a Christian State is impossible, because it is pre-cluded by the structural principle. In this case not any structural interweaving with an institutional Church can impart the internal stamp of Christianity to the body politic.

The primary character of the structural theoretical problem in the discussion about the Christian Idea of the State.

Any inquiry into a possible manifestation of the Christian belief in the historical development of sinful subjective life of the body politic is of a secondary character compared with the structural theoretical basic question. The answer to this basic question is also decisive for the answer to the question whether a truly Christian politics is possible. Also in this case the primary question is not whether in a particular country and in a particular constellation of national conviction a Christian policy can be carried out, but if such a policy is possible according to the internal structure of the State as such.

It is, therefore, also irrelevant to argue that the State has to comprise both Christians and non-Christians, or that on account of the splitting up of Churches it is impossible to decide which Church-creed would have to be adopted by the Christian State. In fact the latter argument again owes its origin to the objectionable idea that the Christian State ought to have an ecclesiastical character. We have already established that the State as such necessarily functions in the modal law-sphere of faith. In its public communal manifestations the body politic may recognize a God above it and above the entire world-order; or it may deify

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itself or human reason; or again openly declare itself a self-sufficient ‘état-athée’ which only appeals to the belief in a social ideal and in man's autarchical power to realize it. But never can the State as a temporal societal relationship struggle free from the grasp of the sphere of faith, within which a higher will than its own has assigned a structural function to it. This is the astounding truth which must at least arouse every wavering mind from his dreams of political neutrality with respect to the life of faith.

The State can no more be neutral in this respect than science. The political slogan of neutrality is as much under the leading of an attitude of faith and as certainly originates from a basic religious commitment as any other political conviction.

The Revelation of God in the political structure of the State-institution.

According to the structural principle of the body politic the modal revelational principle as it presents itself in the aspect of faith¹ assumes a political type of individuality. In the State, as such, God reveals Himself as the Sovereign Origin of all governmental authority, as the Holy omnipotent avenger of all iniquity. In His will the two radical functions of the State's structure, might and right, find their unity of origin and their self-sufficient fulness of being. Not any body politic is able to obliterate this structural Revelation of God from its essential nature. In its function of belief every State remains subject to this politico-pisteutic revelational principle as to an unbreakable political norm of faith.

But this revelational principle in the ‘nature’, i.e. in the internal structure of the State-institution, cannot be detached from the Word-Revelation. The latter reveals the State as an institution ‘ordained on account of sin’ and thus connects it in the faith-aspect of experience with the fall into sin of the whole of mankind and the redemption in Christ Jesus. Without this Word-Revelation the political revelational principle becomes a ‘law of the flesh’, a law of the sinful idolatry either of Ares or of Dikè, or in whatever form the two radical functions of the State may be absolutized. And always this political apostasy is included in a process of opening and deepening of the modal function of faith, because the structure of the State can only realize itself at a disclosed level of culture. The political confes-

1 Cf. Volume II, part I, pp. 302 ff., pp. 314 ff.

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sion of faith in God's sovereignty over the life of the body politic has from the start been typical of a Christian view of the State¹.

This confession would be deprived of its Christian sense if it were taken to mean nothing but the expression of a merely ‘natural’ belief’, i.e. apostatized from the Word-Revelation. God's sovereignty over the State can only be accepted by us in its true sense if we recognize the ‘regnum Christi’. Only in Christ as the Incarnate Word can we truly know and worship God as our Sovereign in the life of the State. Without the political confession of our faith in the ‘regnum Christi’ our recognition of God's sovereignty will become idolatrous.

1 Cf. Gisbert Beyerhaus, Studien zur Staatsanschauung Calvins mit besonderer Berücksichtigung seines Souveränitätsbegriffs (Berlin, 1910), § 10-§ 16.

Christ as the Prince of all the State-governments. The testimony of Holy Scripture.

If all this is true, we can no longer deny that according to its faith-aspect the State is subject to Christ's kingship, which ought to find its own typical expression in the internal life of the State². Holy Scripture is too explicit on this subject for a Christian to be permitted to think that the structure of the State as such falls outside the Kingdom of Christ. According to the Scriptures Christ is the ‘Prince of the kings of the earth’. David's hundred and tenth Psalm, cited by Christ against the pharisees, calls on all earthly kings and rulers to bow down under the Son's sceptre. All Messianic prophecy is unanimous on this point though with increasing emphasis it points to the suffering and death of the Messiah as the road to the establishment of His Kingdom³. The New Testament maintains this thought to the end of the Apocalypse, where the Incarnate Word appears as the King of kings and the Lord of Lords⁴. He is the Judge pronouncing

2 Calvin remarks (C.R. 66, 635): ‘Hodie non habemus terrenum regem, qui sit Christi imago: sed Christus per se ecclesiam vivicat.’ In these words Calvin only refers to the special typological meaning of the Israelitic kingship in David's line for the Messianic future. After the Incarnation of the Logos the office of the government can no longer have this typological meaning.

3 The well known Rabbinical exegesis of the texts which speak of ‘the suffering servant of the Lord’, according to which this refers to the Israelitic people, breaks down in the face of Daniel 9:26 where it is expressely stated that the Messiah (the promised Prince) will be killed.

4 Revelation 19:11-17.

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the last judgment on the world, Who will beat down the heathens with the sword of His mouth and rule them with an iron rod¹.

The Scriptural data exclude the view that according to its essential character the State, as an institution of common grace, has to live by the light of ‘natural’ revelation only. This conception, moreover, essentially implies the acceptance of the dualistic basic motive of ‘nature’ and ‘grace’. A State that does not bow before Christ's sceptre and excludes Him from all political activities, although living in the light of the revealed Word, remains irrevocably lost in the civitas terrena, the kingdom of darkness. But God maintains the divine office and the divine structural law of the body politic also in this state.

1 Revel. 2:27.

Why the internal structure of the State does not allow it to have a Church confession. The integrating function of the State as a political community of faith.

But this does not mean that in any of its manifestations the ‘Christian State’ as such should have an ecclesiastical confession, or that the State ought to assign a public juridical position in political life to the institutional Church. Such a view is incompatible with the structural principle of the body politic. The Christian State is not qualified as a Church community, but ought to respect sphere-sovereignty also in its function of faith.

This is even the first fruit of a truly Christian policy: that the sphere-sovereignty of the different societal structures ordained by God in His holy world-order is recognized and respected in all the spheres of life. The State should not strain its power to dominate the internal societal relations that have received their own specific vital law from God. The very lack of a particular ecclesiastic confession of a binding character, which is incompatible with the internal structural law of a Christian Church, should be accepted with respect to the political faith community of a Christian State. This latter has to perform a Christian political integrating function in the national life of faith. In the confession of God's sovereignty in Christ Jesus, the Incarnate Word, the Victor over sin and death, as the Sovereign of all earthly sovereigns, the State has to unite the whole nation into a Christian political community of faith, so long as the public national opinion shows a Christian stamp.

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The political integration remains bound to the structural principle of the State, the public juridical societal function should take the leading rôle of the State's typical qualifying function, and not an ecclesiastic confession of faith. As a typical institution ordained on account of sin, the State can only be a temporal expression of the supra-temporal radical unity of governmental power and governmental justice in Christ Jesus. Christ is the King and Ruler of the State and the Redeemer from the disintegrating effect of sin in the life of the nations, i.e. He is the King of common grace.

The relation between common and particular grace. Rejection of the theory of the two realms.

We have now to answer the question: what is the relation between common grace and particular grace? In contradistinction to the institutional Church, the State is not a separate institution of special grace but belongs to the general temporal life of the world, just like the family and the other non-ecclesiastical societal structures¹. The Dutch Christian thinker and statesman Dr A. Kuyper Sr has laid full emphasis on this point in accordance with the evangelic viewpoint of the New Testament. The State is not the direct product of the original order of the creation, but owes its existence to common grace as ‘an institution ordained on account of sin’. In its typical structure, the body politic has a general soteriological vocation for the preservation of temporal society in its differentiated condition. This means that a pagan State does not cease to be a State, just as a pagan marriage and family life, pagan art and science, etc. remain possible as temporal life in apostasy.

On the other hand, the special structure of the temporal institution of the Church is only possible as a Christian institution. Common grace in the first place consists in the maintenance of the temporal world-order in all its structures against the disintegration by sin. In this sense common grace embraces ‘the evil and the good together’ and is restricted to temporal life. Special grace, however, is concerned with the renewal of the religious root of the creation in Christ Jesus as the Head of the regenerated human race and must not be considered in an individualistic soteriological sense. From this it follows that par-

1 Cf. Dr A. Kuyper Sr, De Gemeene Gratie, and Encyclopaedie der H. Godgeleerdheid (2e druk 1909) vol. III, pp. 328 ff.

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ticular grace is the real root and foundation of common grace. It is therefore absolutely contrary to the Biblical standpoint when a distinction is made between two independent realms or spheres of grace.

As the Redeemer, Christ is the Regenerator of the entire fallen cosmos. As the Mediator of the Covenant of grace in its religious fullness, He is the Root of common grace, the King whose kingship embraces the whole of temporal life. The civitas terrena, as the world in apostasy, cannot claim any sphere of life as its own in opposition to Christ. A State divorced from the new root of life does not owe its manifestation of apostasy to Christ but to the civitas terrena. In such a State the structural office is maintained and thereby God bestows his temporal blessings on mankind¹. Both this office and its blessings belong to the Kingdom of Christ, Who is the king of common grace, because He is the Head of regenerated mankind. We must therefore undertake the struggle for the Christian State. In its actual societal life, notwithstanding the effects of sin, the Christian State expresses the structural principle of the body politic in its opened and expanded meaning directed to Christ.

True humanity is rooted in Christ and in Him the whole temporal world in its true meaning-structure is saved. That which remains alien to Him is doomed to eternal death and will find Him to be the judge, who will come to pass judgment on the kingdom of darkness. He has already judged the world, but up to the last Judgment the civitas Dei and the civitas terrena will remain in conflict.

Therefore we cannot find a pure and untainted manifestation of the ‘body of Christ’ under the rule of common grace in the temporal life on earth. The antithesis reveals itself in the direction of life towards Christ or away from Him. In the principle of the Christian State political life in its internal structure is directed towards Christ. The positive formation of the typical leading public juridical principles of the body politic is opened to give expression to Christ's kingship over the whole of the internal political life of this societal relationship. But this is only possible on the basis of the historical power that the Christian conception of the State has been able to secure in the national conscience. This should be the first goal of any political struggle for the Christian State.

1 Cf. 1 Tim. 2:1-7.

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The ‘Christian State’ is certainly not a system of external formulas. If there is no Christian political community of faith uniting government and people, it is impossible for an official prayer¹, or the formula ‘by the grace of God’ to impart a Christian character to the State. But the Christian character of public life in the body politic does not depend on the individual attitude of faith of each of the subjects. Everything in the State depends on the character of this institution as a public community, on the spirit pervading all its communal activities.

If the life of Christian faith is considered to be only an individual concern, it is not possible for us to conceive a political Christian community of faith. Then the idea of a Christian State is a contradictio in terminis. But if we take this individualistic view seriously and do not shrink from thinking it out consistently, it is equally impossible for us to speak of a Christian community of faith in the temporal institutional Church.

1 After the above expositions I need not elaborate my view here that an official prayer intended for the use of the various public boards is to be rejected in principle if any Christian character has been purposely kept out of it.