The Modern Idea of the State

The value of the more general and abstract efforts of politi­ cal theory, of what may perhaps be called the philosophy of the state, is often questioned. It is urged on the one hand that the true science of politics cannot go beyond the study of the actual organization of government and of its relations to other social and economic institutions. On the other hand, it is asserted that political philosophy, because it is necessarily a priori in method, cannot do more than ring the changes on certain fundamental types of theory which were stated once for all in the far-distant past. Thus, for example, Professor Dunning in his recent book on Political Theories Irom Rousseau to SPencer says, "Greek Thought on this problem [the justification of authority and submission] in the fourth and third centuries before Christ in­ cluded substantially all the solutions ever suggested. " 1) Nevertheless, with some ups and downs, political philosophy goes on; it is one of those subjects of pennanent human inter­ est which, whether "scientific" or not, men are not likely to abandon. To be sure, it does at times degenerate into an apol­ ogy for special interests in their endless struggle for power. This danger can scarcely be avoided when men undertake to weigh values and to estimate the importance of tendencies that have not yet eventuated in political fact. But notwithstanding this danger, the criticism of principles is indispensable.

The Modern Idea of the State.- I The Authority of the State and the Authority of Law.- I. The Opposition between the Old and the New Idea of the State.- II. The Rise of the Modern Idea of the State.- III. The Significance of the Modern Idea of the State.- II The Authority of the Sovereign and the Authority of the Law in History.- I. The State Originally a Community founded on Law.- II. The Rise of the Authority of the Sovereign.- III. Ancient Political Theory as a Theory of the Legal Order of the Community.- IV. The Political Theory of the Middle Ages as a Theory of Sovereignty.- V. The Meaning of the Contract with the Sovereign and of the Social Contract under Absolutism.- VI. The Relation between the Sovereign Authority and the Organization of the Community in Grotius and Others.- VII. Political Theory as Exclusively a Theory of the Sovereign Authority.- VIII. The Relation between Sovereign Authority and the Organization of the Community in England.- IX. The German Philosophy of the State under the Ancien Régime.- X. Montesquieu’s Separation of Powers: A Product of Political Theory as a Theory of Sovereign Authority.- XI. The Theory of State Sovereignty in the Eighteenth Century.- XII. Rousseau’s Popular Sovereignty.- XIII. The Rise of the Modern Idea of the State under the Constitutional System.- XIV. The Supplanting of the Authority of the Sovereign by the Authority of the Law.- III The Basis of the Binding Force of Law.- I. The Concept of the Sovereignty of Law.- II. The Authority of Law as the Rulership of Will.- III. Criticism of the Rulership of Will.- IV. The Conditions for the Validity of Law.- V. The Basis of Legal Rules.- VI. Objections to the Theory.- A. The Normative Character of the Sense of Right.- B. The Authority of the Sovereign as the Authority of Law.- C. The Stability of Law.- D. Force and Law.- VII. Law as the Rule of a Community.- VIII. Majority Rule.- IX. Criticism of Objections to the Majority Principle.- X. The Individual Sense of Right.- XI. The Quality of the Sense of Right.- XII. The Making of Statutory Law.- XIII. Legislation as the Operation of an Organized Sense of Right.- XIV. Unwritten Law.- A. Content.- B. Necessity.- C. Supplementary.- D. Abrogating and Modifying.- E. Statute and Law.- XV. Strengthening the Authority of Law.- A. The Administration with reference to Punishments and Judicial Executions.- B. The Further Task of Administration.- IV The Making of Law.- I. Law-making as an Intellectual Process.- II. The Influence of Codification.- III. The Revolution in Criminal Law.- IV. The Revolution in Private Law.- V. The Influence upon Judicial Decisions.- VI. The Idea of Sovereignty and Constitutional Law.- VII. The Idea of Sovereignty in Administrative Law.- VIII. The Hybrid Character of the Systems of Constitutional and Administrative Law.- IX. The Logical Consequences of the Old and New Political Theories.- A. The Binding Force of Law.- B. The Monopoly of Law.- C. The Continuance of Validity.- D. The Interpretation of Statutory Law.- E. Judicial Decisions.- V Interests and the Sense of Right.- I. Knowledge of Interests and Impartiality.- II. The Platonic Ideal.- III. Monarchy.- IV. The Intellect.- V. The Balance of Interests.- VI. The Solution of the Conflict.- VI Decentralization of Law-Making.- I. Decentralization Based upon Community of Interest.- II. Transforming Organized Interests into Legal Communities.- III. The Lack of Legislative Organs.- VII The Sources of Law.- VIII The Development of Law.- I. The Historical Process.- II. Intellectualism.- III. The Emotional Life.- IX The State.- I. The Old Theory of the State.- II. Criticism.- III. The Modern Theory of the State.- IV. The State as a Community of Interests.- V. Origin of the State as a Community of Interests.- VI. Origin of the State as a Legal Community.- VII. The Organization of the Community of Interests.- X The International Legal Community.- I. The Authority of International Law.- A. The Derivation of its Authority from the Authority of the State.- B. Criticism.- II. The Content of International Law.- A. The Significance of International Law for the State as a Legal Community.- B. The Subjects of International Law.- C. The Connection between National and International Law.- III. The Creation of International Law.- A. Organs.- B. Customary Law.- C. Treaty-Law.- D. Contractual and Declaratory Treaties.- E. Legislation.- F. The Internal Transformation of International Law.- G. The Rise of a World State.