Assessing the historicalphilosophical background of the German Staatslehre in the light of the type law of the state

Abstract

In this article the contribution of the German Staatslehre towards an understanding of the type law of the state will be assessed in terms of various systematic distinctions and by taking into account significant historical connections. From its inception the German Staatslehre concerned itself with the state and its power. Since 1894 the discipline called Allgemeine Staatslehre comprised a systematic and a historical part. The phrase Allgemeine Staatslehre replaced its attachment to constitutional law (Staatsrecht) and natural law. After a brief reflection on the question if the Greek-Medieval era knew the state, the assessment of Jellinek is mentioned, namely that the discipline Allgemeine Staatslehre is dominated by two opposing world views, the one individualistic-atomistic and the other one collectivistic-universalistic. This calls for an account of the relationship between universality and what is individual against the background of the distinction between modal laws and type-laws. The distinction between what is just and unjust as well as that between right and might (Recht und Macht) opens the way to paying attention to additional features of the state as well, such as the relationship between state sovereignty and legal sovereignty. Characterizing the state in terms of one undifferentiated function evinces a lack of understanding for the multi-faceted nature of the state. This presupposes a non-reductionist Christian ontology safeguarding theoretical thinking from one-sided distortions (absolutizations), such as atomistic and holistic views. Jellinek even refers to individualism and universalism as two opposing world views. As an alternative the relationship between universality and what is individual is employed on the way to distinguishing between modal laws and type laws. The connection between individualism and nominalism is highlighted and followed up by contemplating the dualism of is and ought. The views of Jellinek and Smend are treated in some more detail. Smend mutually separates state and law while at the same time attempting to hold on to their inseparable connectedness. Atomistic and organicistic theories of the state also reveal an inner conflict within political theory. The notion of the validity of values (Werten) illegitimately crosses the abyss between Sein and Sollen. The continued influence of nominalism eliminated universality outside the human mind and reduced factual reality to pure individuality. Jellinek struggled to reconcile his sociological and juridical state concept and in the final analysis did not succeed in avoiding the Leviathan of the total state. Ultimately this issue raises questions concerning the limits or boundaries of the competence (jural power) of the state and it prompted political scholars to face what they designated as the crisis of Allgemeine Staatslehre (Smend and Von Hippel). The legacy of an Allgemeine Staatslehre paved the way for the next generation to develop a more comprehensive and coherent understanding of the nature (and structural principle) of the state. Finally a brief indication is given of key elements required in our understanding of the type law of the state