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The State Notes

BCL Law Notes > Constitutional Theory Notes

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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 <>
?????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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