Concept of the State
A group of human beings can only call itself a state, if it joined together for the common defense of the entirety of its property. It is a matter of course, yet it is necessary to remark that such a union has not only the intention of defending itself, but that it also does in fact defend itself, regardless of what might be its power or success, by really fighting back. For no one will be able to deny that Germany is united for its defense by laws and words. Property and its defense through political union are matters which relate entirely to reality. [ . . . ]
To repeat, so that a multitude form a state, it is necessary that it establish a common defense and political authority. It is irrelevant what may be the [ . . . ] particular constitution [ . . . ] We must distinguish that which is necessary so that a multitude be a state and a common power, and that which is merely a particular form of this power. [ . . . ]
This distinction has a very important aspect for the inner peace of states, the security of governments and the freedom of peoples. For if the general political authority demands of the individual only what is necessary, and limits itself to those tasks which ensure that it receives this essential share, it can let the living freedom and the initiative of the citizens alone and grant it a wide scope in which to play. As a result political authority which is concentrated in the government as its center will not be looked upon with suspicion by the individual. [ . . . ]
In regard to particular civil law and judicial administration the sameness of laws and of judicial practice would not make a state out of Europe, any more than would the sameness of weights, measures or coins, nor would their difference destroy the unity of the state. If the concept of the state did not show that the more detailed determination of legal relations among individuals does not touch the state’s political power, the example of virtually all European states would demonstrate it; for the most powerful of the true states have very divergent laws. France had, before the revolution, such a manifold law that besides the Roman law which was in force in many provinces, there prevailed also Burgundian, Breton, etc., law and nearly every province, even every town had its special customary law; a French writer rightly remarked that a man traveling in France was changing his laws as often as his post horses.
It is also outside the concept of the state how much either particular estates or individual citizens participate in lawmaking, what is the nature of the courts, whether the office of judge is inherited or appointed by the highest authority or chosen by the citizens. [ . . . ]
print version
return to list
previous document