The Theory of the Legal State

In this article, which has not been published before, the late Prof. du Plessis lays bare the philosophical roots o f the liberal-democratic state, or the legal state, as het preferred to call it. A fter a recapitulative version o f the theory o f the legal state, het indicates the origin o f this form in Greek philosophy and in Medieval thought. The stress, however, is on the M odem Era, in which he distinuishes two main periods in the development o f the theory o f the legal state:


Late Professor o f Law P.U. fo r C.H.E. A B ST R A C T
In this article, which has not been published before, the late Prof. du Plessis lays bare the philosophical roots o f the liberal-democratic state, or the legal state, as het preferred to call it.A fter a recapitulative version o f the theory o f the legal state, het indicates the origin o f this form in Greek philosophy and in Medieval thought.The stress, however, is on the M odem Era, in which he distinuishes two main periods in the development o f the theory o f the legal state: * the jusnaturalistic period and the * positivistic or form al period.

He argues that positivism has destroyed the original ideal o f individual freedom in facts by regarding justice as a purely form al matter susceptible to any content.
A ll guarantees fo r individual freedom which rested on a universal normative system fe ll away.The state defines its own competence and limits itself to legal form s in all its activities.The legal state thus merely becomes the state, any state as determined by fix e d rules o f its own making to which it binds it self in all its functioning.Law sinks to a mere form in which the juristic persona lity o f the state manifests its supremacy, and from this there is only one step to the concept that the state is identical with law, so that any state necessarily is a legal state, and any state action which is form ally correct, is legal.The article concludes with a brief representation o f the author's own political and legal vision.
G EN ERA L His torically this th eory represents a reaction to arbibrary rule in certain welldefined forms and at the present day it is especially em bodied in the liberaldem ocratic state w hich is being threatened b y the so-called dictatorships of international and national socialism as th e m odern em bodim ents o f arbitra ry rule.

ORIGINS
In a sense o f course every state and th e state as such is a legal state as being always determ ined by law and operating through legal categories, which does n o t mean th a t state and law are necessarily indentical as Kelsen maintains.But the theory o f the legal state is n ot m eant to be applicable to every state but only to a special historically developed kind or form o f state, viz th a t indi cated in the first section o f this essay, the so-called demo-liberal state.As such it takes its origin from classical quasi-dem ocratic theory.
The m aterial aspect o f the theory is fore-shadow ed in Plato's and A ristotle's political ideal o f governm ent according to nature, which means according to th e perfect essence o f hum an virtue in society, th a t is to say according to the law of nature as later on developed in Stoic theory, the law o f reason and equality and equity, as finally em bodied in Rom an private law.This m ateriallegal basis o f the state is not, however, conceived as lim iting the pow er of the state or o f governm ent, rather it is described as the natural content of the ideal state and o f good governm ent and law, at least as far as concerns the relations betw een th e citizens and th e education o f citizens.
The form al aspect o f th e theory can also be traced to the teachings of Pla to and A ristotle in so far as they considered the safest form o f governm ent to be one according to law, th a t is to say according to custom and legislation by a more or less popular body standing above the law courts and the adm i nistration.(Law in this sense was crystallized in Rom an private law.)Mean while the contract theory as explanation o f th e basis of state a u th o rity had been m ooted by the Epicureans and this also tended in the direction o f bind ing governm ent to popular consent in legal form .
All this referred more especially to legislation on private law.Public law it self was kept separate and was considered as being m ore freely at th e dispo sal o f governm ent.This was changed by the advent o f C hristendom w hich in principle lim ited th e pow er o f the state to so-called secular m atters and also bound public law to the law o f God and n atu re as interpreted by the C hurch, w hich thus becam e the suprem e arbiter o f law, public and private.This brings us to the Middle Age, in w hich certain classical hints as to th e natural basis o f specific social groups as distinguished from the individuals and th e state (and church) were developed under the influence o f Christian do ctrin e and G erm anic custom into a theo ry of th e legal au to n o m y o f cor porations in th e form s of guilds, m unicipalities and social orders (ordines).Even now the individual had n ot come into his right in as much as classical th eo ry entirely su bo rd in ated him to the state and public law though it be in a position of relative equality with o th e r individuals, while medieval th eo ry kept him in subjugation to a variety o f au thorities, ecclesiastical, politi cal, social etc.
The m ost characteristic feature o f medieval th eo ry is its concept o f a com plete system o f divine and natural law w hich shapes and determ ines hum an society as it were from above, a law derived from the will o f God and natu ral reason .This system o f law is considered to be the essence o f positive law as laid dow n and ad op ted to changing hum an circum stances by the a u th o ri ties o f th e church and the state and various auton om ou s com m unities.
The church is the highest au th o rity bu t is in essencc confined to th e dom ain of grace, th e state dom inates th e low er natural sphere o f life and th e head o f th e state, while subordinate to divine and natural law, is the suprem e dis penser o f positive law.
If, however, th e state deviates from divine and natural law in laying down and adm inistering positive law, it in so far forfeits its au th o rity , and all sub jects may be absolved from obedience by th e church.This higher law thus is the material basis o f the legal state in medieval times and it is considered as definitely lim iting the authority of the state in public and in private law.
Form ally the legality o f state action is guaranteed by the more or less con tractual relation am ongst the hierarchy o f authorities above and below the state, which has as a consequence th a t im po rtan t state action requires the concurrence of these o th e r authorities and observance o f the general feudal contracts betw een them , which may be enforced even by armed conflict, in as m uch as the state does n ot have the m onopoly o f force in medieval times, the several social organisations still being largely undifferentiated, the essen tially econom ic guilds e.g.having im portant cultural, religious, fisical, mili tary an d legislative functions as well, etc etc.
A t th e end o f the Middle Ages this medieval system is being underm ined by nascent individualism and nationalism.Now the idea arises th a t the funda m ental fact o f nature is not a universal system of will and reason and law, b u t th e free individual as a centre of independent will and sovereign reason in himself.So natural law becomes the product of the individual will, which is saved from choas by a national unification o f the individual wills in the state, which then becomes th e com ponent o f the individual wills by free con sent and social com pact, authorized by these wills to lay down the positive law to th e advantage of the com bined individuals.The freedom of the indi vidual will generates the sovereignty of th e national will, and the problem arises how to guarantee m aterially the jusnaturalistic co n ten t o f th e positive law as product o f the sovereign will and how formally to organize the sover eign will so as to ensure th e legality o f its actions.
The R eform ation did n ot have m uch trouble w ith this problem as it main tained the ideal o f natural legal principles o f all positive law em bodied by th e C reator in Scripture and in the natural constitution o f hum an society, while discarding the suprem acy o f the church, and m oreover in its Calvinistic form , which was th e cause of modern parliam entary institutions, recog nized th e legal com petence of all natural and historical social organizations, o f each according to its own nature, thus form ally ensuring legality by the requirem ent o f co-operation between the state and these o th er organizations as represented in parliam entary institutions.But m odern theory while dissolving hum an society into sovereign individuals felt the full im pact o f this problem .

The suinaturalistic period
The first solution of this problem was offered by the so-called classical or jusnaturalistic theory of the law o f nature as the basis of society and the state, the law o f nature namely in its m odem hum anistic conception as the rational rule of liberty o f th e individual man.
A t first theorists were content to base the sovereign will on an original com pact o f the individuals to subject themselves to one w ith a view to securing law and order or the general good, and further all emphasis was laid on the unity and indivisibility and absoluteness o f sovereignty as the suprem e source of all positive law.This was the line taken by Bodin and G rotius, who, how ever, at the same tim e m aintained th e regulative force of the law o f nature.Thom as Hobbes, however, w ho conceived o f the law of nature as one of chaos and barbarity, took th e view th a t the founding of society and the sovereign state person put an end to th e rule of natural law, so th a t positive law is the original and free product o f the sovereign will unfettered by any rule of na ture.Now this theory was so strongly opposed to the facts o f the British consti tu tio n in w hich a rule of law more or less independent o f the sovereign will had always been recognized, and m oreover so unfavourable to th e 17th cen tury opposition to start absolutism , th a t it found much less support in Eng land than on th e continent o f Europe.
The English com m on law and non-conform ist reaction against the Hobbesian absolutism was fu rther strengthened by the rise in philosophy o f a less ratio nalistic current o f thou gh t which found in nature as em pirical substratum n o t soluble into rational concepts and accordingly refused to allow the indi vidual to be absorbed and subm erged in a rationalistic system of artificially constructed sovereignty.
In this view the free individual is a perm anent datum of nature, and natural law is preserved as the basis o f the state so th a t sovereignty, while being ba sed on the contractual unification o f th e individual wills in to society, never theless remains bound to th e original purpose of its in stitu tio n viz the more effective m aintenance o f individual liberty.Thuswise th e jusnaturalistic con te n t o f positive law as product o f th e sovereign will is m aterially guaranteed.This theory also attacked th e second part of the problem , viz how form ally to organize th e sovereign will so as to ensure the legality of its actions.This was done in th e main by entrusting th e wielding (execution) o f th e sovereign pow er to several distinct authorities w hich could m utually check one another and especially by reserving th e m ost im po rtan t pow er viz th e legislative to the representative body or paliam ent which could be supposed to reflect the public will o f society and to be pow erful enough to make this will effective as against the o th e r authorities in th e state in the form o f sta tu te law.The difficulty of course rem aining th a t th e representative body may be falsified or frustrated or th a t a deadlock may result; and in any case there is no guaran tee th a t even th e representative body will always be m inded to guarantee in dividual liberty.In fact a fully dem ocratic sovereign may be m ost ty ran n i cal against liberal liberty.
In any case this dem ocratic representative constitution is pictured n o t only as th e historic safeguard of liberty in England b u t as a postulate of th e jusnaturalistic theory o f individual liberty and in both its material and its formal aspects it is a developm ent o f suggestions throw n o u t by a w hole series of late medieval theorists betw een the 14th and 1 5th centuries o f w hom the m ost im p o rtan t is Marsilius o f Padua.
The classical exponents o f th e theory, however, are Jo h n Locke, Baron de M ontesquitu an d Jean Jacques Rousseau.Their relevant w orks should if pos sible be read and sum m arized in this connection.
Finally th e jusnaturalistic period is concluded by a m oralistic reinterpretation in idealistic vein on the continent by K ant, F ichte and H um boldt, and in utilitarian strain by H um e.Betham and Mill in England.
While m aintaining th e above o utlined criticism of th is th eo ry as a w hole its special m erit m ust at the same tim e be underlined, in th a t it brought to the fore the unique value of the individual also in social and political relations n ot only in reference to th e sphere o f private law as in th e Rom an, ius gentium b u t in th e dom ain o f public law as well.The legislature is constituted indirectly by the m ajority of the people, it is the suprem e pow er, however, constituted, and y et as delegated by the people has no pow er further to delegate its legislative power.The legislative body ought only to m eet interm ittently for the passing of laws and ought n o t to execute the laws, so th a t the legislators may live under the laws passed by themselves and thus be careful to frame laws for the com m on good.The ex ecutive body on the o th e r hand, while subordinate to the legislative, functions continously in as much as the laws require continuous execution.A separate pow er n o t regulated by the laws, while also usually entrusted to th e executive body, is th a t for the m anagem ent o f external affairs, called the federative pow er, w hich is determ ined by the law o f nature and seems to point to the prerogative pow ers o f the British m onarchy.(N.B.: The judicature is n o t spe cially m entioned in this connection as a separate power, and in th e question above it is closely affiliated to th e legislative pow er.)It m ust be noticed th a t the legislature as once constituted by the com m u nity cannot be changed w ithout overthrow ing the existing state by revolution.Thus Locke's theory does n ot envisage any reform ation of the constitution of the British legislature (ro tto n boroughs etc ), y et he has no objection to allowing the executive by prerogative to reorganize the representation in par liam ent, which is an obvious anom aly; oth er prerogative powers are justified as rem nants of a period o f greater popular tru st in rulers.These could be li m ited by the legislature as a w hole .
The last resort is the appeal to heaven, th a t is to say revolution and recon stitu tio n of the state by society.In th a t case, however, the executive really is the prim ary rebel in breaking the basic covenant and so reopening th e con flict (rebellare) and then as Locke expresses it: " every one is at the disposure o f his own will, when those who had, by the delegation of the society, the declaring o f the public will, are excluded from it and others usurp the place, who have no such auth ority or delegation" .In the last resort therefore the form al guarantee of individual liberty against the reason o f state disguised as th e com m on good is n o t the legislature or the separation o f powers but revolution o f the massed individuals.Because society is n o t viewed as materially The Theory of the Legal State defined and articulated b ut as form ally constructed by means of a com pact o f free individuals, for the com m on good, the material liberty o f the indivi duals and society cannot be form ally guaranteed by a constitution which m ust continuously waver in unstable equilibrium betw een individual liberty and social good.Nevertheless Locke had succeeded in rasing the standard o f indi vidual liberty against th e suprem e power o f the state in private and in public law.
The fam ous French theorist o f the legal state Charles de Secondat, baron de M ontesquieu, De 1' Esprit des Lois is even more em piristically enclined than Locke and lays special emphasis on the necessity of a liberal constitution as a guarantee o f individual liberty.
The constitution of the state he then analysis as determ ined by a variety of causes, but as a guarantee o f liberty he fixes on a constitution on the model o f th at o f England and especially characterized by a separation of powers with a view to mutual lim itation o f powers, so th a t th e balance of the seve ral powers of governm ent while reducing the danger o f tyrannical criminal legislation and execution conduces to the m aintenance o f individual civiL liberty -the form of the political constitution thus guaranteeing the material o f civil liberty, which is natural right.And y et civil liberty is defined w ith out relation to natural liberty as the pow er to do w hat the laws require one to wish for and the absence o f being forced to do w hat the laws forbid one to strive for.Liberty already tends to becom e absorbed in to legalism, the m a terial into the formal, as even more clearly evident in the teachings o f Rous seau.M ontesquieu, however, considers liberty as only one of the possible ends o f the state as e g in England; the liberal constitution then is th a t one in which legislative and executive pow er are separated, while the legilative pow er, though not absolutely suprem e, yet represents the people as a united w hole; in such a constitution furth er the executive is separated in to two, the one governed mainly by international law (Locke's federative pow er including part o f Locke's executive pow er) and the oth er the pow er o f judicature evidently governed by municipal law.The lawgiver m ust only legislate, so as not to be interested in the execution o f the law, the executive only execute so as to be restricted in its use of power by the executed law and the judge only interpret fixed law so as to be bound by law n ot o f his own making and to be forced to leave the execution o f his sentences to the executive, etc.
In fact the formal law m ust be the ruling power in state and the law must be the em bodied will o f a true representative legislature, representing the people Rousseau then makes it his task n o t so much to explain the rise o f the state as to revolutionize th e constitution o f th e state so as to bring it in to harm o ny w ith th e natural hum an liberty o f selfdeterm ination by free choice.For this purpose he uses th e traditional ideology o f th e " contract social" b u t gives it a new content, in th a t it is conceived by him as a m ethod fo r creating an infallible unified general will out o f a m ultiplicity of particularistic individual wills w hich m aintain their liberty by being com bined into one.This general will is then declared am nipotent as being th e essence o f hum an perfection and so is com petent to force recalcitrant individuals to be free.Against its suprem acy all natural law or scientific reason breaks dow n and the only gua rantee as to its hum anity or essential justice is th e form al m ethod o f its selfexpression viz by means o f a universal meeting of the people to declare the law, and the com plete subordination o f the executive pow er to this legal will -in fact, however, the guarantee against the arbitrariness of the suprem e will is its sublim ation into ideal justice.And in principle it is indeed sublim ated in as m uch as it is conceived as a kind o f ideal unity of th e individual wills, as th e tru e will o f every individual although it may be at com plete variance w ith his actual will, as the expression of the perfect human being which results from the transform ation o f natural man into a citizen by means of the social com pact and under the influence of some semidivine original lawgiver.Even as the m ore concrete general will which issues into legislation of an illim ita ble, indivisible, inalienable sovereignty, in as m uch as the particular wills of the people (excluding the always particularistic w om en) gathered in direct, general assembly for legislation proceeding from all and directed to the equal and com m on good o f all, cancel their m utual particularity and becom e uni versalized into unity, even as such the suprem e pow er still remains fairly at tenuated.But w hen Rousseau proceeds for practical purposes to introduce the principle o f m ajority vote as determ ining legislation, we have the Leviathan naked and undisguised into which all natural liberty o f the individual is ab sorbed, although in this case the Leviathan is not the governm ent as repre senting the body politic but th e massed individual citizens themselves expres sing their m ajority will w hich cannot be represented in any way.G overm ent th en is only execution of th e so expressed popular will by agents w ho can at any tim e be discharged, and the adm inistration of justice simply the appli cation o f this law.These are no separate powers any m ore, b ut only subor dinate and particulirized applications o f th e only sovereign will, th a t o f the legislature w hich is the unity o f the wills of all th e citizens and as such the true em bodim ent o f liberty in which each individual has becom e " comme Partie indivisible du to u t" .So, while Locke raised the standard o f individual natural liberty as a right against the governm ental power, thu s differentating th e ideal of private law or civil law as the guarantee o f right to the private person as such and M on tesquieu sought a guarantee of civil liberty in the constitution itself, R ous seau proclaim ed as the true and only basis of the civil law o f liberty th a t o r ganization o f public law w hich ensures its being the direct expression o f the general will o f all the people as directed to the equal good o f all -liberty re sulting from equality before the law and this being based on universal equa lity in the making o f the law, the idea o f public law, thus being differentiated as the expression o f the identity o f will for public purposes generated in a com m unity o f free private persons w ithout aristocratic privilege or any sectional organization, The construction of public law is now to serve as the guarantee o f individual hum an liberty and so the m aterial idea o f individual liberty as purpose of the legal state recedes into th e background and the scene is held by the more form al idea o f a truly dem ocratic constitution where law rules as being the general will.In fact these ideas are m utually exclusive as shown by Rousseau's phrase " to be forced to be free" and y e t they are still com bined in the w ritten constitutions of the revolutionary period in France as if in com plete mu tual harm ony.A ctually th e Leviathan em erged suprem e from th e conflict in Napoleon and y et one o f the belated results was the code o f civil law and an other the judicial defence o f private legal right in adm inistrative law against encroachm ents by adm inistrative officials of the executive power, which means th a t the ideal of individual liberty had in fact been realized in a rath er circum scribed sphere.
By this tim e then, th a t is the last quarter of the 18th century, th e doctrine o f natural law an d right had fulfilled its function in generating the ideas of liberty through popular; sovereignty, suprem acy o f law, equality before th e law and subordination o f th e executive pow er to law and the legislature.So th e stage was set for th e second period o f the legal state th eo ry in w hich th e jusnaturalistic m aterial aspect was superseded by the constitutional form al aspect, which change o f accent was philosophically advanced by th e victory o f empirism in England through th e labour of H ume and the rise o f historicism on the continent.Law now come to be looked upon not as an em bodim ent o f na tural right but rather as the will o f the (popular) sovereign-jusnaturalism w a; being replaced by dem ocratic positivism.And the emphasis now is on the constitutional im provem ent o f th e expression o f the popular will.
The abruptness o f this change was, however, softened by th e intervention o f a period of speculation on th e etnical (vide jusnaturalistic or legal) limi tations o f the sovereign will.In this period o f transform ation there was a clear d istinction betw een the utilitarian English theory in to produced by Jere my Bentham and th e idealistic German th eory proceeding from Immanuel Kant In fact from now on there is a distinct clearage betw een English and German thou ght, w hich is m aintained into the second period o f the th eo ry o f the legal state.
English dem o-liberal thought now bases itself on th e com m on sense ethical concept o f " th e greatest happiness o f the greatest num ber" and from this con clud es1 th a t the state should leave the individual to his own devices as much as possible and direct its public actions by the ideal o f hum anitarianism and organize itself on th e lines o f dem ocratic parliam entary sovereignty and the rule o f law as expounded by independent law courts w ith a bias in favour of th e defence o f private right against adm inistrative arbitrariness in public law, a bias w hich in America was em bodied in the w ritten constitutions and reinforced by an extrem e separation o f powers.This th eory finally issues into the rule of law theory as expounded by Dicey This has already been briefly dicussed and we shall now proceed to a discus sion o f the continental theory o f the legal state in the second period, prefa cing a few rem arks on the idealistic '.liberalism o f Kant, which is the ethical basis o f this theory.K ant proceeds from the idea th a t the hum anity o f man is unassailably gua ranteed only in th e autonom y o f the individual will as the perm anent ethical idea o f individual selfdeterm ination according to the categorical imperative o f always acting so th a t the rule o f this action can be conceived as a univer sal law.This absolutely excludes the determ ination o f the will by any oth er will or by any force outside the will, especially by any factor o f natural cau sation.The rationalistic schem atisation o f reality w hich was th e ideal o f ra tionalism up to now, had threatened to engulf hum an liberty in the dark cur ren t o f causation, and this danger had to be cut off a t th e ro o t by elevating the hum an will as th e idea K ant himself, how ever, only justified gradual reform ation and rejected any form o f revolution) against th e powers th a t be.A t the basis of this th eo ry there remains the idealistic ethical principle o f hum an liberty as moral a u to nom y in th e m ost absolute sense, w hich in F ich te's first period is accentua ted into absolute individualism.It may be w orthw hile to sum m arize the steps o f K ant's descent from this ethical ideal to th e theo ry of the dem ocratic legal state in its form al period on the co ntinent o f E urope -a descent w hich is it self the essence o f form ality. Thuswise -the form of moral legality in gene ral w hich characterizes the categorical im perative o f ethics is the bridge be tw een pure practical reason and the phenom enal reality o f nature in hum an life, the form o f liberty in the relation o f m utual freedom o f choice in society is the bridge betw een right according to pure practical laws o f reason and em pirical social life, and the form o f the dem ocratic general will is th e bridge betw een this idea o f justice and the positive law o f the civil state.
The judgem ent o f pure practical reason as to the justice o f external acts (i e m orality on its external side) is thus declared to be essence o f positive law -" eine blosz em pirische Rechtslehre ist (wie der holzerne K opf in Phadrus' Fabel) ein K opf der schon sein mag, nur schade, dazz er kein gehirn h a t" .But this essence is so form al, this rem nant o f natural law so atten u ated , th a t it only am ounts to th e sanctioning of force w ith a view to hindering hindrances to liberty o f choice in the coexistence of individuals in so far as such liberty o f choice can coexist w ith like liberty o f every one else according to a ge neral law o f freedom .V alid law and right is m aterially only constituted by the force o f the general will, though derived from th e form al ideal of individual liberty in external acts as based on moral liberty o f selfdeterm ination.
A fter K ant on th e continen t a reaction set in against individualism and in this developm ent th e general will was m etam orphosed by rom anticism and historicism in to th e national mind as the source of all law.This national mind was at first represented as personified in th e historically developed state and Hegel idealised th e state itself as the moral personality o f hu m an ity and as such suprem e. L ater on even idealism itself was replaced by sociological positivism which saw as the moving pow er behind the state the socio-econom ic forces working in the historic developm ent o f society and by the Marxian socialism this idea was defined as th a t of the class struggle in w hich th e ruling class necessarily dom inates society by its pow er and uses th e state as the instrum ent o f its power.By the dialectical developm ent o f history however the ruling class o f the tim e, th e bourgeois capitalists, was according to this view destined to be overthrow n by th e proletarian class o f labourers.
N ational socialism again is a com bination o f this th eo ry w ith nationalistic historicism and issues in the view th a t th e pow er behind the throne is the so cializing race basis o f nationality.
These theories are opposed to those o f the legal state, which dom inated the scene during th e 19th century, as theories o f the pow er state.But even in these theories the ideal o f liberty and equality survives though in a socilized form , in Marxism in an egalitarian society, in national-socialism in an orga nic society.
But let us return to the th eo ry o f the legal state in its second or form al period w hich dom inated the scene in th e middle o f 19th century.

T he positivistic or form al period on th e co n tin en t
In this period tw o results had been achieved as a consequence of jusnaturalistic and ethical speculation and revolutionary practice, viz (1) in the do main o f private law the idea o f equality in private rights of the private person as such, no privileges nor slavery and no distinction o f race, creed or natio nality, and (2) in th e dom ain o f public law the abolition o f all feudal relations o f a public nature including guild organisation and a clear distinction o f le gislature, adm inistration and judicatu re w ith relatively dem ocratic represen tation in the legislature and th e suprem acy o f parliam entary law.
On the o th e r hand th e idea th a t the private person as such could have any legal right as against th e state as lawgiver was made impossible by the th eo ry th a t all law is positive and state-produced, while the various social groups and organizations (excluding political parties) had n o t y et been recognized as clothed w ith any original rights or legal capacity, b u t w ere considered as creatures o f th e state and its law, as far as th eir legal status was concerned.
It was expected th a t th e representative legislature should guarantee all private and social rights.
C onsequently all em phasis was laid on the desideration o f form al legality in all state action and th e suprem acy o f dem ocratic legislation as a guarantee of individual liberty is so far as historicism and positivism did n o t content itself w ith declaring th e suprem acy of the historically evolved state power or accepting as legally binding all th a t the state as such decreed.Pure posi tivism, however, was a later grow th which culm inated in K elson's identifica tio n o f state and law.F.J. Stahl eg.,writing in the first half o f the 19th century, still considered law as a second-rate social m orality characterized by force, restrictiveness and externality, y et nevertheless as essentially objective ethos.As such, however, it was necessarily im perified and even its justice not above reproach: law is in a sense bad b u t certain m orality , and thus even in its positivity n o t neces sarily good justice.F urther, law is social m orality as form ed by a nation in a state and thus only applicabel to those acts o f individuals which affect the nation w ith reference to th e external fashion o f social life.
Law as social m orality regulates the social existence o f th e individual, o f the fam ily, o f local com m unities, corporations and orders, o f the state and the com m unity of states and of th e church.As such it is in a sense determ ined by th e social structure and restricted by its own externality; it is fu rth er re stricted by its purpose of guaranteeing rights to th e individual in society, so th a t public adm inistration which has a w ider purpose than law, is in part extrajural.Law and the state do not correspond com pletely, y et law is positive and positive law is w hat the stae com mands though it be im m oral and unjust and though th e state may adm inistratively act outside law itself.Form ally positive law is always binding.Law may, however, also originate from the historical background o f the state, viz the volkgeist-i.e.com mon o r custom ary law.
There are individual and social moral determ inants o f law, b u t positive law which also regulates a part o f state action is freely created by th e nation and state* as such.For th e state is no organism or corporation b ut th e au th o rita tive moral self-expression o f th e nation.As such it is determ ined by the moral personality o f the nation and its laws, b u t the state itself is th e incarnation o f this moral personality as the king is the personification o f the state.Con sequently the state is the suprem e guardian o f external or social m orality by means o f positive law.Thus m orally th e state ought to be a legal state.
On th e other hand th e state is the form ally suprem e dispenser o f the law, the legal guaranties o f its legality can only be internal to itself, a result o f its own character and constitution; outside o f the state there is no basis for legal outon om y because all social groupings are part o f th e state.Form ally th e state is th e sovereign lawgiver o f form al law w hich has an outw ard sanction though n o t necessarily an inw ard vadility.
So th e form o f th e state and th e staic action acquires suprem e im portance w ith a view to ensuring its legality.N ot w hat it guarantees to the individual or society, is im portant or rath e r decisive for its legality, b u t how it acts in form ing its guarantees and sanctions, in w hich the main points are the form o f the legis lature and th e circum scription o f adm inistration by law, al though Stahl also posits a m ysterious interaction betw een national mind, sovereign state will and law in determ ing th e constitution of th e sta te and th e character of its law.
Stahl also differentiates betw een judicature and adm inistration in th a t the first has as its main purpose m aintaining the right o f individuals and groups (justice), while the la tte r aims at th e com m on good w ithin th e lim its o f law and right.Both are determ ined by law, b u t in the second case rath er as by an outw ard fence -this being a rem iniscence o f th e so-called Polizeistaat in Germany.And in any case there is no appeal from th e A dm inistration to a court o f law even on a poin t o f law, b u t only from a low er A dm inistration au th o rity to a higher, excep t in th e m atter o f criminal punishm ent w hich in fact is a question of adm inistration b u t is closely connected w ith individual right th a t it can only be based on the sentence o f a court o f law.So there are also certain private rights w hich are exem pted from adm inistrative interference, such as a real prop erty, paternal pow er, etc.However, in the case o f conflict betw een ju d i cature and adm inistration and fo r certain o th er purposes a special adm inistrative co urt may be required.But th e legislature itself is free from legal restraints.Of this further developm ent little need be said except to point o ut how the theory of the legal state was fu rth er form alized into pure dem ocratism and legalism, until finally the state was considered a result o f sociological forces in a m aterial and form al sense, and was declared to be a legal state however constitu ted by these forces -in as much as all states and any state m ust neces sarily issue in law.This final d ev e lo p m e n t: consequently destroyed th e idea of the legal state as a special kind o f ideal state in as much as is declared all states equally to be legal states, in this respect revealing a retrogression even as against the theory o f the power state which at least retained an ideal of socialization.
Let us, however, briefly return to the later developm ent in the second period of th e legal state before its final dissolution.

STATE SOVEREIGNTLY IN MODERN GERMANY BY EGGERSON
In this theory a certain legal autonom y o f the nation and social groups or of society is recognised b u t this autonom y is not juridically (legally) based on the essential nature o f these group forms, b ut on their will as sanctioned by the state in its recognition o f custom as a source o f law and in its sanction of statu tes and regulations of corporations in so far as n ot opposed to the public interest as interpreted by the state and its laws.The state remains legally su preme and produces formal law of its own free will though in material inter action w ith national and social forces, and all th a t remains for th e ideal of the legal state as a restraint upon arbitrariness is the constitution of the state on a socially representative basis and the testing o f adm inistrative acts according to the law of the legislature by an independent judicature, w ith o u t any clear recognition o f the special principles of adm inistrative justice.
At the background o f the law-producing pow er of the state and o th er au th o ri ties thfere still remains the ideal of social necessities and interests which consti tu te centres o f jural personality as bearers o f rights (and duties), individual personality as well as social personality, w ith th e state as the all-embracing and consecuently suprem e personality.
The state ideally considered is th e suprem e conciliator o f social interest conflicts and is m aterially determ ined by this conciliation in its nature as a legal state; yet nevertheless law itself positively considered is the free p roduct of th e state and adm instration is the free pursuit of the public good w ithin th e lim its o f the law.The state integrates society into harm ony by lim iting itself to legality by means of its constitutional balance o f powers and adm inistrative adjudication.
With grow th, however, o f pure positivism in a sociological sense the conclus ion could hardly be evaded th a t the state is no m ore th an the p roduct o f society though it m ay finally be considered as a juristic person and even as a suprem e juristic person and thus as th e formal source o f suprem e law in w hich it defines its own com petence and lim its itself to legal form s in all its activities.The legal state then becom es merely th e state, any state, as determ ined b y fixed rules o f its own making to w hich it binds itself in all its functioning.Law sinks to a m ere form in w hich the juristic personality o f th e state m anifests its suprem acy, and from this there is only one step to th e concept th a t the state is identical w ith law, so th a t any state necessarily is a legal state -the extrem e positivistic relativism in the theo ry o f th e state and th e law as expounded by Kelsen.
While the liberalism of Locke had been replaced by the dem ocratism o f Rosseau tow ards the end o f the first period, now th e sociological insight in to the dangers o f dem ocratic tyranny in the party system and th e pressure o f interest groups caused by revulsion from dem ocratism to constitutionalism and rule o f law and from th a t to pure relativistic legalism, as against th e frank return to socialistic or nationalistic pow er politics, in fact the socialistic approach has welnigh destroyed the conception o f individual private rights from which th e theory o f th e legal state set ou t.
T he decline o f the theory o f th e legal state -negative and positive criticism o f th e hum anistic theory.
In the final period o f th e theory o f th e legal state tow ards the second half o f th e nineteenth century th e process o f its self-destruction is com pleted.Its basic ideal o f individual sovereignty o f the hum an personality w hich had in its first stage generated the idea o f private right o f liberty against the state and of popular sovereignty in legislation w ithin the state, had in the second period been transform ed into th e ideal o f th e national mind which expresses itself in law and right and em bodied itself in th e state as the creator o f positive law according to national genius, which law itself is the gaurantee o f justice and as such m ust be judicially m aintained against th e adm inistration by independent courts o f justice.Now, however, in the third period positive sociology in the world o f theory and socialism in th e world o f practice had exposed the state as the mere reflection o f social pow er relations w itho ut an inner ideal content of individual or national personality and personal right, and law as the regularisation o f these pow er relations.
So private right is changed from a state-free sphere of right into a fortuitous law-free sphere o f life in society w hich is hedged o u t by social solidarity as its continually issues in law and legal duty; >and popular sovereignty is m etam or phosed into th e socially determ ined despotism o f the m ajority which is always right only because there is no absolute right any m ore; and the legal determ i nation o f justice as well as th e judicial lim itations o f adm inistrative discretion, th e purely form al gaurantees of legal right, are constantly w hittled down by the urgent pressure o f social necessities.The theory o f the legal state then finally successively retreats into th e defensive position of state law as a means or form al category of social culture, of law as th e self expression o f the state as juristic personality pass excellence, or at least as one o f the many social per sonalities, of law and state as identical norm ative systems guaranteed as legal by the special scientific m ethod o f their construction w ith o u t any relation to social reality and all the ethnical-political postulates o f o u td ated hum anism -Ahrens, D am staedter, Jellinek, Kelsen).
Y et nevertheless meanwhile a new conception o f th e legal state has arisen, w hich is based on th e m aterial right o f various natural and historic social groups.This furnishes a basis for a positive criticism o f the hum anistic theory.The vitium originis o f this theory is the hum anistic concept th a t hum an reason or will is the sovereign source o f all positive law, which leads to the conclusion th a t there can be no positive right against the sovereign will and th a t law is only form ally determ ined by its origin from the sovereign will and thus w ith o u t material legal content, although it may be determ ined in its content by external forces, econom ic, psychological, biological or w hat not.The question then only is w here will the sovereign will is found or how it is constituted, w hether it is localized in the individual or the state or several social groups or according to th e laws o f social developm ent o f the m om ent.
As against this concept Calvinism adheres to the conviction th a t law is m ate rially determ ined by the C reator o f the Universe and in principle revealed in Scripture and in nature and society as historically developed, and form ally prom ulgated by various social authorities, by each according to its destination and nature, and th a t th e state is n ot the source o f all positive law b ut only of state law (public and social and private) and th a t its law is determ ined by its A ccordingly th e legislature m ust represent th e nation in its u n ity and its diver sity (by th e incorporation o f social groups in advisory capacity), th e judicature m ust be im partially co nstituted b u t so as to be fair w ith all social needs and th e executive m ust com bine au th o rity w ith expertise and universality.In this connection th e w ork o f th e ju dicature is o f suprem e im portance as the inter preter o f law and executive regulations, so as to save the autonom y o f the individual and th e social groups as against th e dem ands o f national unity and public order in the application o f private and social law and vice versa of adm inistrative law as such.This task can only be accom plished by clearly dif ferentiating the several cosmological laws w hich qualify the au to n o m y of all hum an activities -according to their several functions.
If the state through its ju dicature or otherw ise fails in this d u ty o f realizing form al law on the basis o f supra-voluntary right, its acts are n o t only unjust b u t stricd y illegal, and although no pow er w ithin th e state is justified in using force against it, every individual and every social group o f cosmological au th o rity is entitled to disregard its dictates as contrary to law even if clothed in all the form s o f law.And in fact such dictates sooner or later prove th eir own illegality by causing chaos instead of order, as not being capable or regulating social intercourse.
The state in form ing its own law thus is not free to establish this arbitrarily, but just as all oth er social groups are determ ined by their essential nature in estab lishing their internal laws, so the state only produces law in the strict sense when it realizes its own essential nature in correlation with the o th er group form s within it and the individuals in their interrelation as such.This law may also be m ore or less righteous as judged by the idea of right, but th a t does not in full affect its legality.Besides, the state in constituting itself by constitu tional law is bound to th e present historical basis of its being, viz. the political organization o f th e nation, which when the established state is shifted off this basis rises into statehood by assimilating to itself the political force o f the com m unity, and this is legal revolution.

T
he theo ry o f the legal state posits: * Legislation w ith continuous consent o f a popular representation dem o cratically elected.
The free individuals o f th e state o f nature bind themselves by contract which is an in stitution o f th e law o f nature (pacta sunt servanda), to unify their ge-neral forces into civil society fo r th e purpose o f protecting the individual li b erty o f each by means o f positive law, If therefore this purpose is n o t achieved the individual is absolved from his conditional co n tract.Nevertheless it is also conceded th a t the sovereign has to be guided by the com m on good and the conflict betw een com m on good and individual liberty is n ot resolved: th e sanctioning o f revolution carries w ith it the constant th reat o f anarchy.
Jo h n Locke w ho was educated in a nonconform ist hom e and was by convic tion an em piristic rationalist, published his political theory in his Two Trea tises o f Govt.(1690) directed against Film er and Hobbes and in favour of th e G lorious Revolution in England.The general o utline of his theory is sufficiently know n and need n o t be re peated.The follow ing six salient points, however, require notice.Ju st as the m aterial o f know ledge is derived from the individual sensations and reflec tions and only th e relations betw een these are rationally determ ined, so the m aterial o f natural law is provided by individual p ro p erty (in th e special Lockian sence) and only th e social protection o f property, based on th e jusnaturalistic social con tract, is a m atter for positive law.T he m aterial purpose o f the social contract is none other than organized protection o f the inborn natu ral hum an rights o f the individual, term ed by Locke his property.Y et by an intelligible anom aly the state is also required to ensure the public welfare the m o tto o f his w ork actually is: Salus popul suprem a lex esto.Locke's own definition com bines these divergent purposes o f th e state into one seeming ly harm onious w hole (I.i. in fine): " Political pow er, then, 1 take to be a right o f making laws w ith penalty o f death, and consequently all less penalties, for th e regulating and preserving o f property, and o f em ploying the force of the com m unity, in th e execution o f such laws, and in th e defence of the com m onw ealth from foreign injury, and all this only for th e com m on good" .By property is understood life, health, freedom and m aterial goods o f the individual and all together are also styled liberty w hich was defined form al ly by Locke as follows (11 ): " F reedom o f m en under governm ent is, to have a standing rule to live by, com m on to every one o f th a t society, and made by the legislative pow er erected in it; a liberty to follow my own will in all things, where th e rule prescribes n o t; and n o t to be subject to th e inconstant uncertain unknow n, arbitrary will o f an o th er man: as freedom o f nature is to be under no o th e r restraint b ut th e law o f n atu re" .The elem ents o f this form al legality o f the free state clearly are: legal cer ta in ty , equality before th e law, separation o f powers, popular consent to le gislation, absence of other than legal restraint and o f arbitrary rule -no one o f w hich, however, is a guarantee for th e m aterial right o f property.T he form al ideal is clearly and succinctly stated by Locke him self in the fol lowing words: " A nd so w hoever has the legislative or suprem e pow er o f any com m onw ealth, is bound to govern by established standing laws, promulga ted and know n to the people, and n o t by extem porary decrees, by indifferent and upright judges, w ho are to decide controversies by those laws; and to em ploy the force o f the com m unity at home, only in th e execution o f such laws" .
as a w hole on th e basis o f a vote for every norm al adult citizen.Y et M ontes quieu makes a variety of concessions to the necessities o f historical develop m ent and hum an weakness, allowing e g a veto pow er o f th e executive in law making and a pow er o f arresting and imprisoning suspected persons in tim e of em ergency, as well as several aristocratic privileges.In these several concessions th e fundam ental dualism in M ontesquieu's con ception is revealed, viz th a t betw een th e civil state as th e union o f individual wills and th e political state as consisting o f th e com bined force o f th e com m u nity as w ielded by th e governm ent.Nevertheless as m odified by practice in the direction o f allowing w ider political pow er to th e executive in a broad sense the theo ry o f M ontesquieu as com bined w ith th a t o f Locke had a pro found influence in shaping th e political con stitu tio n o f th e w estern w orld, especially in th e U nited States in the general direction o f a representative le gislature and independent judicial control over th e in dependent executive power.Meanwhile th e theo ry o f em pirism had advanced so far through th e critiques o f David H ume th a t reason had been reduced to a association o f sensual im pressions and now th e ideal o f hum an liberty and sovereignty veered round to th e level o f feeling and will.Jean Jacques Rousseau was th e great p rophet o f th e new hum an freedom as guaranteed by the consciousness o r feeling o f liberty to choose am ongst several possible alternatives w ith o u t constraint by natural law or even th e laws o f reason.In fact Hume had already denied th e existence o f reasonable law in a state o f nature.
o f liberty o u t o f this causal concatenation.But now th e coexistence o f m any individuals necessitates th e m utual lim itation o f th e liberty of individuals which is the idea o f right, o f w hich the ideal prin ciple is a form o f association in w hich the freedom o f choice o f one indivi dual can coexist w ith th a t of all others.F rom this is deduced th e ideal o f the (relatively) dem ocratic state and o f positive law as the rule o f hindrance of hindrances, and o f international society as th a t o f a dem ocratic league o f nations tending tow ards the establishm ent o f eternal peaces Peace however requires suprem acy o f pow er which at least outw ardly destroys individual liberty of choice -as even K antw as forced to adm it.T he suprem acy o f political power in laying down positive law is according ly now an accepted tend and idealistic liberalism lim its itself to applying to the state the ethical ideal o f th e lim itation o f its pow er, to th e hidrance o f hin--The Theory of die Legal State drance o f liberty, w hich according to K ent is th e ideal form of law being m o rality applied to external acts, and th e constitutional ideal o f dem ocratic legi slation and subordination*of executing government to laze.K ant however, restricts political right to th e class o f independent citizens -th e bourgeoisand only gradually th e dem ocratic ideal succeeds in universalizing political citizenship.
Still, in th e form o f constitutional m onarchy it incorporates o r personifies th e national m ind and th us is itself potentially determ ined by law which as political ethos is a pro du ct o f th e national mind.L ater theorists in this move m ent m ore especially developed th e idea o f self-governm ent and the extension o f adm inistrative judicature and com bined this w ith the gradual socialisation o f law This developm ent revealed th e conflict betw een liberalism and dem ocratism in the theory o f th e legal state -liberty versus equality -Locke versus R ous seau, especially in th e developm ent o f the theory in France.
destination and nature as th e only m aintainer o f law and right by means o f the organized force o f th e territorial com m unity which is based on nationality in m o d em times.It is th e m aintainer o f private law w hich is based on the jural needs o f the individual as such in his relation w ith o th e r individuals as such, it is th e inte grato r o f social law according to the principle o f th e jural needs of national hom ogeneity on the basis o f th e destination and nature o f the several social groups o f natural and historic origin, it is th e form ulator o f public law for the national state in its relation w ith o th e r states on the basis of th e historical destination o f the particular sta te and th e nature o f th e state as such.F rom this it follows th a t th e legal or jural state m ust be so organized th a t it can best form ulate state law in accordance w ith its nature and th e needs o f th e com m unity, th a t it can in terp ret law im partially according to th e right o f the individuals and th e internal au th o rity o f th e several social groups and th a t it can m aintain th e needs o f social justice by th e force o f th e com m unity ac cording to th e exigencies o f public force.