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The State Notes

BCL Law Notes > Constitutional Theory Notes

This is an extract of our The State document, which we sell as part of our Constitutional Theory Notes collection written by the top tier of Oxford students.

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7. THE STATE M. Weber, 'Politics as a Vocation'(1919): The State is the monopoly on legitimate use of force Context of speech - given during German Revolution in 1919 = overthrow of German Empire in favour of republic post-WWI - Naval Command insisted on ordering climactic battle with British Navy despite defeat - sailor's revolt prevented from taking place Content
? Politics is art of compromise & decision-making based on social benefits <>
costs
?????Conception of State - as monopoly of legitimate use of force o State if and insofar as administrative staff uphold a claim to monopoly on legitimate use of force in the enforcement of its order o Caveats
? Has not always been the case - eg in feudal states, private warfare permitted // religious courts with jurisdiction over heresy & sex crimes
? "Monopoly" = source of legitimacy not source of force - eg right of self-defence derives from State authority
? Politics = influence of distribution of force
? 3 grounds for legitimate rule - State merely a placeholder for political organisations o Traditional - patriarchal & based in habit o Charisma - Prophets, demagogues, etc
? Are these 'legitimate'?
o Statutes - Legitimate legal authority
? IE suggests State can exist independently of legal order? Or should legal order be more broadly defined? The concept loses its meaning if it collapses into social rules
? 2 forms of the State o Where administrators beneath the ruler have own powers of administration separate from the ruler - eg wealth, control over labour
- aristocratic, feudal o Where administrators separated from actual tools of administration &
become 'confidants without means' in the governmental organisation - modern H. Kelsen, General Theory of Law and State (Russell and Russell: 1945), 181-201 (Keble Library) The State is nothing more than its legal system Nature of State as entity
? Social order <> legal order

?

o State as social order - legal order can't exist without pre-existing social 'State' to regulate - just as physical person exists before legal person, social State exists before legal State o BUT individuals only form a community because legal rules regulate their behaviour - drawing of lines is artificial - State has no more natural identity than a corporation o Social State can exist, but not before the Juristic State - former presupposes the latter Problems with characterisation as a social order - unity of individuals independently of the legal order o Political, social and economic interactions / commonality of will/interest
? more intense between members of a State? If so, then only because of the legal delineation of the State
? State boundary-drawing is only one way to group individuals - also ethnic groups (eg Kurds), language, interest groups, etc - probably division doesn't represent State lines o Organic theory - composed of its various parts - plainly absurd and calculated to reinforce legitimacy of institutions & duty of citizen to State
? Raises problem of imputation - actions of State must be actions of some individual - only because they have legal authority in office o Domination theory - social interaction which binds State together is the character of demanding & obeying demands - BUT "State" demands are differentiated from other demands only by the presence of a legal system o "Political" social order - but only because it monopolises the use of force, which is the essence of law - equates to a religious fiction of a State behind the law as a god behind the sun o Weber - human behaviour oriented to legal order - but the legal order is the State - human behaviour can be oriented to different incentives (economic, social)

Organs of the State
? Broad (any individual executing a legally backed function - eg incl citizens in election) <> narrow (persons holding office or acting with the authority of the State)
? Narrow concept leads to imputation of acts to State
? State only acts by its organs - organs are created by others (eg appointment of judges) - one organ superior to the other if it can create laws obligating it o BUT legislature <> judiciary (where power to strike down legislation) superiority is not clear
? May be individual or composite
? Procedure can be conceived as a series of incomplete partial acts leading to action by organ Duties & rights of State

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