Assessing the historical- philosophical 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 ofvarious 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 disciplinecalled Allgemeine Staatslehre comprised a systematic and a historicalpart. The phrase Allgemeine Staatslehre replaced its attachment toconstitutional law (Staatsrecht) and natural law. After a brief reflection onthe 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-atomisticand the other one collectivistic-universalistic. This calls for an accountof the relationship between universality and what is individual againstthe background of the distinction between modal laws and type-laws.The distinction between what is just and unjust as well as that betweenright and might (Recht und Macht) opens the way to paying attention toadditional features of the state as well, such as the relationship betweenstate sovereignty and legal sovereignty. Characterizing the state in termsof one undifferentiated function evinces a lack of understanding for themulti-faceted nature of the state. This presupposes a non-reductionist Christian ontology safeguarding theoretical thinking from one-sideddistortions (absolutizations), such as atomistic and holistic views.Jellinek even refers to individualism and universalism as two opposingworld views. As an alternative the relationship between universality andwhat is individual is employed on the way to distinguishing betweenmodal laws and type laws. The connection between individualism andnominalism is highlighted and followed up by contemplating the dualismof 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) illegitimatelycrosses the abyss between Sein and Sollen. The continued influence ofnominalism eliminated universality outside the human mind and reducedfactual reality to pure individuality. Jellinek struggled to reconcile his sociological and juridical state concept and in the final analysis did notsucceed in avoiding the Leviathan of the total state. Ultimately this issueraises questions concerning the limits or boundaries of the competence(jural power) of the state and it prompted political scholars to face whatthey designated as the crisis of Allgemeine Staatslehre (Smend and Von Hippel). The legacy of an Allgemeine Staatslehre paved the wayfor the next generation to develop a more comprehensive and coherentunderstanding of the nature (and structural principle) of the state. Finallya brief indication is given of key elements required in our understandingof the type law of the state.