The Juridical Theory of State

The Juridical Theory of State of all varieties of social co-operation, one dominates the others. It is the State, and a fundamental problem in every law system consists of settling the legal relations between the State and its members, both the individuals and the juridical persons.

Points of View:-

As pointed out in an earlier article, the state may be envisaged from various points of view. Thus the sociologist conceives it as primarily a social fact or phenomenon, the historian as a product of historical development, the mom philosopher as an institution for realizing ethical ends the psychologist as an organization that manifests its will according to psychical laws.

The political scientist is a political association established for government and the jurist as an organ for creating law and the protection of legal rights. Each conceives and defines the state in terms of his own science attributes to its qualities, reflecting his own method of thinking and assigning to it ends that correspond to his own conception. Each is a partisan of particular theories regarding the origin, nature, sphere, function, and ends of the state. Their various theories often differ, one from another, in form and substance.

Views of the Jurists:-

The jurists’ theories differ accordingly as they belong to the analytical, historical, or sociological school. The analytical jurists are in accord regarding the state as an institution for the creation, interpretation, and enforcement of law and which acts through and using the law; they regard it as the sole and exclusive source of law since nothing will be applied and enforced as law by its judicial organs which the state has not enacted or recognized and permitted to be enforced as such.

The historical jurists agree with them that the state is the source of law. Still, they deny that law is necessarily a command formally enacted by a law-making organ and penal sanction to ensure its enforcement. They emphasize the historical development of law; they point out that a large part of it in the past has consisted of custom which was never formally enacted and consequently cannot be said to have been formally created by the state.

As stated above, some jurists, like Duguit, even go to the length of asserting that law may exist anterior to the creation of the state, and therefore is independent of its will and that the state is bound by this law and has no right to override or disregard its prescriptions.

The Personality of the State:-

A question Which has been the subject of prolific discussion among jurists and political writers is whether the state may be regarded as a person in the legal sense, that is, a juridical creation having a personality, an individuality, a self-consciousness, and a will of its own, somewhat as a natural physical person has.

The lawyers of the Middle Ages recognized what they called personae, which is artificial persons to which was attributed a fictitious legal personality. Such a personality was attributed to certain groups or collectivities, including the church. Still, it never seems to have occurred to the medieval lawyers that logically a similar personality might have been attributed equally to that greatest of all groups, the state. With them, legal personality was a concept exclusively of private law and not one also of public law.

It was not until the nineteenth century was well on its way that the private law conception of legal personality was taken over into the domain of public law and applied to the state by a group of German writers, notably Stahl, Stein, Gerber, Lasson, and later Gierke, Treitschke, Rehm, Bluntschli, Jellinek, and many others.

Gierke reproached the medieval jurists for their failure to attribute legal personality to the state and for what is regarded as their error in considering the personality of other groups (Genossenschaften) to be only a fictitious personality.

In fact, he argued, they were real, not fictitious persons. They had a body and members of their own they had wills of their own and could act in the same way that natural persons can will and act. Finally, he concluded that this legal personality was not derived from the state; it was not conceded to them by charter or tacit recognition but existed independently of the state’s will.

His English translator, the late Professor Maitland, one of the most eminent legal scholars, was a partisan of his theory. Bluntschli likewise conceived the state as par excellence, a person in the sense of public law having a legal will of its own distinct from the sum of the wills of the individuals composing the state. A capacity for expressing its will in words and acts and as the creator and possessor of rights Its personality, he added, is not merely a juristic fiction or metaphor, but a reality.

Many other writers, mostly German, a few French, and some English support the theory that the state is a juridical entity separate and distinct from the people viewed as a collectivity and individual. Who compose it, having a personality, a will, and even rights and interests of its own, apart from the rights and interests of the people who form the state some of them maintain that this personality is not artificial or fictitious but real, as real as the personality of a human being.

In support of their theory that the state may have interests of its own which may not be identical with those of the nation the people organized as a state, they point out that the state is a permanent and enduring association, it is a sort of trustee or guardian of the interests not only of the people who Eompose it today but of future generations, but it also has, therefore, permanent interests which may be different from the more immediate and Particular interests of the people of any given epoch.

Moreover, the interests of individuals as conceived by themselves, are often contradictory. It is consequently impossible to determine the sum of them, in which case the only ascertainable collective interest is that of the state.

Criticism of the Doctrine of State Personality:-

A few writers reject the whole notion of state personality, the most eminent of them being Professors Duguit and Lever. The nation declares. Duguit rests upon a metaphysical a priori conception and upon old scholastic concepts that have no value, and it is moreover unscientific.

A juridical theory, he adds, has value only in so far as it expresses in abstract language a concrete social reality, a fundamental rule of conduct, or a political institution. The theory of state personality meets none of these conditions; it is a purely mental concept devoid of all positive reality.

Professor LeFur, contrasting the mystical or idealistic solution according to which the state is regarded as a fictitious person, a moral or a juridical person, with the realistic solution which conceives it to be a veritable person, a real being, a living organism, declares that both are in contradiction with the facts which they pretend to explain. The idea of a fictitious person is in itself, he says, easy to understand but what is not easy to explain is that a fictitious person may be invested with rights of power. The state is not fiction; it is a real fact, the most important of all social facts.

We must choose between two alternatives. This person is fictitious. That is to say; it exists only in our imagination and, consequently, cannot exercise practically any rights whatever hr if it really exercises rights, it is real and not fictitious? There is, therefore, a clear contradiction in assigning an action real power, which necessarily supposes a real existence, to a simple fiction. And he adds that practically man alone can be a sunk of rights and obligations. A fiction cannot be a subject of rights or obligations, nor is it capable of willing or acting.

Acceptance of the Theory with Qualifications:-

The great majority of jurists, however, attribute to the state a legal personality, though few outside Germany go to the length of regarding it as a person having a will and a consciousness and possessing rights and interests of its own separate and distinct from those of the nation, that is, the people viewed as a politically organized unit and apparently none are to be found today who regard it as a real as contradistinguished from an artificial or legal person.

Where they Speak of the state as being a person in constitutional law or inten national law, they mean nothing more than that it is a sovereign corporation, that is, an artificial person as the law regards all corporations, and as such possesses a collective will, a legal capacity, and a power of collective action, apart from the will, the capacity, and the power of action of the numerous individuals who compose it, just as a private corporation has a continued existence and possesses rights and obligations that are distinct from those of its shareholders.

These qualities which belong to natural persons are by a fiction of the law attributed to the state. The state is treated as if it were a person and not as really being a person. This does not imply, as some of the juridical theory’s adversaries appear to believe, that the state thus personalized is itself a fiction. On the contrary, the state is a reality, the fiction being merely in the jurist’s mind or the provision of the law, which attributes to it a legal quality which in a physical sense is possessed only by human beings.

When jurists say, as Esmein did, that the state is the juridical personification of the nation, nothing more is meant than that the organized collectivity which they call the nation possesses the quality of legal personality; it is not meant that this: person or personality is something outside of and above the nation.

Nor is it meant that a state is a supplementary person superordinated to the individual personalities of those who compose the state. In short, the nation becomes a person, a state, only by its organization, and this person has no existence outside the nation. Thus, says Michoud, the nation has no listing juridical existence. The state is nothing else than the nation itself (the collectively) juridically organized; it is impossible to understand how the latter could be conceived as a subject of right distinct from the state.

In this sense, the juridical theory is merely a point of view from which the jurist envisages the state. It may rest upon a fiction, but the law abounds in fictions. As Esmein Pointed Out, it is sometimes using fiction that realities are translated into understandable terms; sometimes, they are the most convenient means of explaining juridical relations that result from facts.

Professor LeFur, the most vigorous antagonist of the theory of state personality, which he says is false and more dangerous than useful, admits that it may be useful for purposes, comparison, that it may contribute to a better understanding of the reality which lies behind the fiction, that it may be an excellent means of rendering account of the play of the com. Plicated mechanism of the state, and that it may be useful in certain epochs for distinguishing more easily the interests of the state in its entirety from those of a part of the state, and of those who are governed from those of the governors alone.