#14944 - The State - Constitutional Theory

7. The State

M. Weber, ‘Politics as a Vocation’(1919):

The State is the monopoly on legitimate use of force

Context of speech – given during German Revolution in 1919 = overthrow of German Empire in favour of republic post-WWI – Naval Command insisted on ordering climactic battle with British Navy despite defeat – sailor’s revolt prevented from taking place

Content

• Politics is art of compromise & decision-making based on social benefits <> costs

• Conception of State – as monopoly of legitimate use of force

  • State if and insofar as administrative staff uphold a claim to monopoly on legitimate use of force in the enforcement of its order

  • Caveats

    • Has not always been the case – eg in feudal states, private warfare permitted // religious courts with jurisdiction over heresy & sex crimes

    • “Monopoly” = source of legitimacy not source of force – eg right of self-defence derives from State authority

• Politics = influence of distribution of force

• 3 grounds for legitimate rule – State merely a placeholder for political organisations

  • Traditional – patriarchal & based in habit

  • Charisma – Prophets, demagogues, etc

    • Are these ‘legitimate’?

  • Statutes – Legitimate legal authority

    • IE suggests State can exist independently of legal order? Or should legal order be more broadly defined? The concept loses its meaning if it collapses into social rules

• 2 forms of the State

  • Where administrators beneath the ruler have own powers of administration separate from the ruler – eg wealth, control over labour – aristocratic, feudal

  • Where administrators separated from actual tools of administration & become ‘confidants without means’ in the governmental organisation – modern

H. Kelsen, General Theory of Law and State (Russell and Russell: 1945), 181-201 (Keble Library)

The State is nothing more than its legal system

Nature of State as entity

• Social order <> legal order

  • State as social order – legal order can’t exist without pre-existing social ‘State’ to regulate – just as physical person exists before legal person, social State exists before legal State

  • BUT individuals only form a community because legal rules regulate their behaviour – drawing of lines is artificial – State has no more natural identity than a corporation

  • Social State can exist, but not before the Juristic State – former presupposes the latter

• Problems with characterisation as a social order – unity of individuals independently of the legal order

  • Political, social and economic interactions / commonality of will/interest

    • more intense between members of a State? If so, then only because of the legal delineation of the State

    • State boundary-drawing is only one way to group individuals – also ethnic groups (eg Kurds), language, interest groups, etc – probably division doesn't represent State lines

  • Organic theory – composed of its various parts – plainly absurd and calculated to reinforce legitimacy of institutions & duty of citizen to State

    • Raises problem of imputation – actions of State must be actions of some individual – only because they have legal authority in office

  • Domination theory – social interaction which binds State together is the character of demanding & obeying demands – BUT “State” demands are differentiated from other demands only by the presence of a legal system

  • “Political” social order – but only because it monopolises the use of force, which is the essence of law – equates to a religious fiction of a State behind the law as a god behind the sun

  • Weber – human behaviour oriented to legal order – but the legal order is the State – human behaviour can be oriented to different incentives (economic, social)

Organs of the State

• Broad (any individual executing a legally backed function – eg incl citizens in election) <> narrow (persons holding office or acting with the authority of the State)

• Narrow concept leads to imputation of acts to State

• State only acts by its organs – organs are created by others (eg appointment of judges) – one organ superior to the other if it can create laws obligating it

  • BUT legislature <> judiciary (where power to strike down legislation) superiority is not clear

• May be individual or composite

• Procedure can be conceived as a series of incomplete partial acts leading to action by organ

Duties & rights of State

• Traditionally (& assuming social<>legal duality) – if State is authoritative entity from which legal order emanates, what rights & obligations does it get from that legal order?

  • Makes conception of rights & liabilities of State easy to understand

  • In another way defies logic that a social entity with supreme authority over law should be constrained in any way – unless it constrains itself

    • = problem of auto-obligation

• BUT if no duality – how can legal order impose obligations on legal order?

  • Only means that the law regulates its own creation (obligations as a legal order)

    • Or that it subjects itself to another authority that creates laws = international law, federation

  • And that persons making the law themselves the subject to it (obligations as individuals)

• Duties (Delict) of State

  • = obligations & rights of individuals composing organs

  • violation of international law

  • State won’t have criminal obligations – but only because it doesn’t impose them on itself

• Rights of State = benefits it confers itself contingent on legal processes – eg right of State to punish criminals (seems like an odd term) – perhaps right to protection national security

L. Green, The Authority of the State (Oxford University Press: 1990), chapter 3

Montevideo Convention

State (in international law) =

(a) a permanent population;

(b) a defined territory;

(c) government; and

(d) capacity to enter into relations with the other states.

N. Barber, The Constitutional State, chapter 2, 3.

Approaching the State

• Elements of Statehood – territory, people, governance structures – shared by churches, corporations, international NGOs

  • Each of these bodies influence the State also

• State distinguished by social or legal character

• State as a legal order – Weber

  • “vertical” model – focuses on relationship between State & subject

  • Monopoly on legitimate force – claim to legitimacy distinguishes it from other actors – force only necessary when authority of State challenged

  • Characterised by plenary legitimate authority – cf other actors which have authority only in particular areas

  • Other bodies exercise force – Weber would say source of legitimacy is the State = tacit empowerment or forbearance from exercising State monopoly power

    • In line with socialist revolutionary movement in 1919

    • BUT ALSO liberalism – exercise of force or authority is allowed wherever there is a vacuum

    • Green – State can draw its jurisdictional lines wherever it pleases – existence of other sources of authority is no threat

  • State commands must have a degree of effectiveness

    • Citizens obey either because of fear of sanctions/reaction to incentives or respect for authority – surely doesn't matter which

      • Weber – State only exists if citizens acknowledge claim to legitimate authority – unrealistic

      • Empirically – sanctions/incentives unlikely to remain potent for long if population doesn't consider legitimate

  • Requirement for territory

    • Green – dispensable – people of different alliances could live anywhere – States could territorially overlap – so long as individuals clearly belong to a State & are governed by its rules

      • Sounds logistically impossible

    • Non-nationals also have duty to a State – laws restrict conduct of non-nationals while they are with nationals

      • BUT if the purpose is to protection nationals – then ineffective now that non-nationals can influence nationals without being on our territory

      • Would create duality of laws – but nationals when abroad are subject to domestic & foreign laws

    • Is this simply a case of the State drawing its jurisdictional lines, arbitrarily, around a particular boundary?

      • Relationship with need for authority – State cannot establish legitimacy outside its territory

        • But probably only because people would cease to obey

      • Implies that State couldn’t establish legitimacy outside the bounds of certain subject-matter as well

    • State has claim to property rights over land in territory

• State as a social group – Aristotle (& Barber)

  • Adds “horizontal” dimension – between citizens

  • Social group = group of people bound together by rules

    • Doesn’t this just end up back at a legal order?

  • Simple <> complex

    • Simple groups – formed by mutual intentions – arguably not bound by rules – withdrawal may be unreasonable but not violation of obligations

      • BUT ‘unreasonable’ represents social rule? So if no binding social rules then rules become legal

      • No ability to divide tasks – simply naturally pursuing similar objectives – eg coffee drinkers, choir

    • Complex groups – not all members aware of others – constructed according to rules – have means of resolving disputes

  • Purposes – benefit of members <> external goal

    • Eg family, trade union <> charity, business

    • Distinction not exclusive but emphasis on purpose is necessary for continuity of the social organisation

  • State is complex group for benefit of its members

J. McLean, Searching for the State in British Legal Thought (Cambridge University Press: 2012), chapters 2 and 3.

Questions:

Seminar

Why is the State important?

• Challenges to the importance of academic discussion of State

  • Globalisation – top-down objection – no place for the State in a global...