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Conceptions of the State

Abstract and Keywords

This article challenges the idea that the concept of the state is a central feature of constitutional law everywhere. Sociologists have stolen a march on jurists by questioning whether the state is a universal phenomenon. The argument here is that only continental European scholarship has come up with what can be judged a complete theory of the state. By comparison, Anglo-American constitutional law scholarship has a somewhat incomplete conception of the state. To demonstrate this, the analysis relies on the usual threesome invoked for defining the state (a government, a territory, a people), which presupposes a somewhat fictitious similarity among all states, but on an examination of the relations of the state, first, with the concept of constitution, then with the concept of sovereignty, and finally with the concept of institution.

Keywords: theory of the state, constitutional law, European scholarship, constitution, sovereignty, instituion

I. Introduction

The very title of this chapter, inviting us to address ‘conceptions of the state’ in comparative constitutional law, indicates the angle of approach: the aim is to examine the question of the state in the plural. And in assuming there to be more than one conception of the state, the editors clearly give us to understand that distinct constitutional traditions or cultures think of the state in different ways. Accordingly, the comparative outlook immediately introduces some form of ‘relativization’ or differentiation, inviting law scholars to desist for a moment from thinking that their own legal systems and states are universal phenomena.

(p. 270) Yet it is striking that classical textbooks on comparative constitutional law are seemingly unaware of this feature of the comparative outlook.1 For example, Giuseppe de Vergottini's classic—a Standardwerk—has a chapter on the concept of state as if it were a natural category of comparative constitutional law notwithstanding the observation that the state is not recognized in the United Kingdom.2 Some recent studies, however, do break with this assumption that there is just one single conception. Élisabeth Zoller argues that public law, and so the state, too, is thought of differently in France and in the United Kingdom and the United States.3 Similarly, in her recent textbook, Marie-Claire Ponthoreau writes that ‘The legal concept behind the word “state” does not have the same consistency from one legal order to another’.4 But ultimately, can we not be a little more radical in the treatment of our subject matter and consider that in constitutional law there are jurisprudential traditions in which the concept of state is not a central feature. Might we not venture even that in some countries there simply is no conception of the state?

Just think of England, which is so important for the understanding of modern constitutional law and of the satellite community of common law countries. Whereas the term État became established in seventeenth-century France, ‘state’ failed to find a foothold in England and has not done so since.5 It will be objected that it is not because there is no word for something that there is no concept of. Yet it is precisely that there is a concept labelled ‘state’ which causes the problem when examining the English case. There is no idea of the state in England, remarks the writer of an important book on the subject.6 This is what strikes foreign observers looking to give an account of English law. As Denis Baranger remarks, ‘any talk of the state in Britain seems … to raise certain problems’.7 Likewise, those English jurists who have rubbed with continental and Roman legal science are alert to the strangeness of their own ‘stateless’ system.8 One need only open Albert Dicey's textbook on British constitutional law9 to see that it has no specific developments on the state.10 And neither in theory nor in practice is the state at the heart of British publicists’ thinking.11 This observation is even more valid with respect to US legal literature. Whether one opens the most important textbooks of constitutional law (eg Lawrence Tribe, American Constitutional Law) or casebooks, the state plays a very limited (p. 271) part. Times have changed since a scholar such as Westel Willoughby sought to convert US jurists to the science of the state.

This lack of interest for the question of the state contrasts starkly with the theoretical over-investment to which the same concept has been subject in certain European countries and especially in Germany and France, but in others, too (Italy, Spain). Emblematically, in Germany it was even envisioned that a new discipline might be created by the name of Allgemeine Staatslehre (general theory of the state). This hesitancy in choosing between constitutional law and general theory of the state12 for dealing with the state, is a field of study in itself.13 It is worth recalling here as evidence that the question of the state is a central one for European constitutionalists.

As readers will have grasped, one of the aims of this chapter is to challenge the idea that the concept of the state is a central feature of constitutional law everywhere. Sociologists have stolen a march on jurists by questioning whether the state is a universal phenomenon. The argument here is that only continental European scholarship has come up with what can be judged a complete theory of the state. By comparison, Anglo-American constitutional law scholarship has a somewhat incomplete conception of the state. To demonstrate this, I shall rely not on the usual threesome invoked for defining the state (a government, a territory, a people), which presupposes a somewhat fictitious similarity among all states,14 but on an examination of the relations of the state, first, with the concept of constitution, then with the concept of sovereignty, and finally with the concept of institution.15 It is worth making one final point: this chapter lays no claim to being exhaustive; it is built on hunches and on some sparse evidence.

II. Two Distinct Ways of Viewing the Relationship between Constitution and State

For reasons to do with the subject matter of our inquiry and with space constraints, I shall not engage in any discussion of constitutional theory as to whether or not ‘constitution’ should be taken in the material or the formal sense. The purpose of my line of inquiry is more limited and is confined to underscoring the existence of two separate traditions: the continental, Roman, ‘European’ tradition that almost systematically associates the idea of constitution with that of state; and the common law tradition that tends to think of the one separately from the other.

1. The State as a Presupposition of the Constitution

The continental European tradition is distinctive in that it considers the concept of state itself as being presupposed by the concept of constitution. More often than not, the constitution is (p. 272) defined by the (written) legal instrument that organizes and founds the state.16 From this legal-regulatory conception flow two major consequences for understanding the constitution.

For one thing, it is perceived as being politically neutral. By this it is meant that the constitution is not necessarily devised to be liberal, to impose limits on power; it also purports to organize power. The constitution is the regulation of the state, that is, the legal arrangement by which the uppermost echelon of the state—its rulers—is organized and governed. This does not necessarily imply that power is limited, shared out, and controlled. The constitution can be thought of as ruling an authoritarian state, which is contrary to the most stringent requisites of constitutionalism. This accounts for the two sides of the constitution: it is at one and the same time an instrument that enables and an instrument that disables. Moreover, since the constitution is perceived as the ‘articles of association’ of the state, it is considered as binding on its addressees, the rulers and the ruled alike. It is thought of as a unilateral instrument, along the lines of the law of the state. Thus in several countries the constitution must be promulgated like any statute. In the instrument of promulgation it is stated that it must be performed like a ‘law of the state’. Such an interpretation bars the road to another conception of the constitution that was current in the nineteenth century and that saw it as a sort of political contract, whether a constitutional pact or a federal pact.17

According to this tradition, then, the state has in some sense become a sort of second nature of modern constitutional law. It is a kind of unheeded element of this constitutional science that reappears immediately when the association between state and constitution becomes problematic. This is the case today with European construction, which has compelled constitutionalists to think again about the connection between the constitutional instrument and the political entity to which it pertains. If the constitution is the ‘articles of association’ of the state, for there to be such a European constitution there would either have to be a European state or the constitution would have to be dissociated from the state. Both solutions have been contemplated.18

2. A Constitution Thought of Without the State: The Rule of Law Imposes its Vision of a Simple ‘Government’ of Public Affairs

Alongside this European tradition, which is state-centred even in respect of the concept of constitution, however, stands the common law tradition that does not at all perceive the constitution as being intrinsically related to the state. Here the constitution is related to the idea of the rule of law, as transpires from reading Albert Dicey.19 He conceives of the constitution as ‘the security given under the English constitution to the rights of individuals’.20 The concept of rule of law appears here as the great unwritten constitutional principle of English law. It implies three things: the principle of lawfulness, the equality of all citizens before law, and the judicial protection of rights.21 Accordingly, constitutional law too is inspired by the maxim (p. 273) that ‘remedies precede rights’22 such that there is serious competition between the written constitution and the common law. One might somewhat provocatively claim, following Dicey, that there is no need for any specific constitutional law since the common law provides for everything. For a jurist from the continental European area, the relations between the two concepts (constitution and common law) remain a mystery.23 Admittedly, one should not be too naive and mistake a part for the whole believing that constitutional law is exhausted with the rule of law. The rule of law does not extend to every domain. There is a whole sphere of ‘governmentality’ in English law that, thanks to what is left of the doctrine of prerogative or of Crown theory, escapes the control of the courts and even any political control. US law too has a sphere of power that is not controlled by the courts and which is even tending to grow dangerously.24

There arise a whole series of conceptual consequences from this sort of association made by Anglo-American jurisprudence between the rule of law and the constitution. The constitution is perceived as a set of legal rules by which the rights of individuals are safeguarded. Political power rests upon two pillars: the common law and the power of the courts. Dicey, once again, captured this primacy of the ‘judicial State’ in very clear terms: ‘They [judges] rather than the government represent the august dignity of the State, or, in accordance with English terminology of the Crown’.25 This is why the idea of judicial review becomes thinkable, including for a statute that supposedly emanates from the people when one is not stopped by the doctrine of parliamentary sovereignty. Marbury v Madison (1804), which is invariably cited to illustrate the birth of the control of constitutionality of laws, is a fine example of a common law procedure used to defend an individual right. Such pre-eminence granted to the rights of the individual assumes that it is admitted that the courts are third instances between the state and individuals; they are not fundamentally conceived as state institutions.26

The other obvious consequence is that the constitution is conceived also, or even primarily, as a charter of freedoms. This is a recent tendency, though. Initially in England, rights were protected by simple laws or by simple charters (such as the celebrated Magna Carta). In the United States, the Philadelphia Constitution admittedly contains a Bill of Rights, but its initial aim was not so much to protect human rights in general as to prevent the Union (the federation) from interfering excessively in the internal affairs of its member states.27 However, since the Fourteenth Amendment introduced the Equal Protection Clause its massive use by the courts, combined with the equally massive use of the Due Process Clause has brought about a substantial upheaval in US constitutional law, which is mainly perceived as a law of freedoms within which the rights recognized by the Bill of Rights form the chapter headings of textbooks and casebooks. US constitutional jurists interested in institutional law pass for heterodox figures.28

(p. 274) III. State, Sovereignty, and Federalism: Can the State be Thought of as Anything Other than the Unitary State?

Although the issue of sovereignty is examined in this volume by Michel Troper,29 it shall nonetheless be addressed here for a very simple reason: when it is taken in the sense of sovereignty of the state (legal person) and not in the (democratic and organic) sense of sovereignty of the people,30 it comes in a different way under the ideal-type contrast between the ‘European’ and ‘non-European’ conceptions.

On the one hand, there is a telltale sign in the Anglo-American tradition: in the Oxford Handbook of Law and Politics,31 the word ‘Sovereignty’ is not to be found in the subject index. Jurists with an interest in sovereignty are exceptions in the jurisprudential landscape.32 On the other hand, in countries of the Roman law tradition, the term ‘sovereignty’ is invariably found in equivalent dictionaries. In France, it is found in most dictionaries,33 and at any rate in constitutional dictionaries,34 as it is in Germany in the Lexikon on core concepts (Koselleck, Brunner, and Conze, Staatslexikon) or in Italy.35 If the concept of sovereignty is central in the continental European tradition, it is because it is considered that it is and that it remains the criterion of the state. However, this question is quite simply not posed in Anglo-American constitutional scholarship. And so the concept of sovereignty illuminates the clear contrast between European doctrine, which gives precedence to state power that prizes sovereignty, and the Anglo-American doctrine, which is unaware of sovereignty or ignores it.

1. Sovereignty as a Criterion of the State and the Tropism of the Unitary State

In the European tradition, and by virtue of sovereignty, state power is held to be a power of dominance, even an irresistible power, such that the state may be defined as a ‘unit for decision-making and action’.36 Admittedly, this idea has been contested,37 but it does still structure the way the state is perceived. Notably, it has a major effect on the way in which forms of state are accounted for. It long implied that just a single form might be described: the unitary state. Federalism came along to spoil this fine harmony and plunge jurists into terrible turmoil. A second form had to be invented, the federal state, which allowed greater autonomy—that could extended to constitutional and legislative autonomy—to ‘infra-state’ authorities referred to as ‘federated entities’.38

Undoubtedly, the tropism of sovereignty leads the state to be perceived of principally as a unitary state. The unitary state has been defined as the one which ‘legally appears to be that (p. 275) whose Power lies in its founding, in its structure and in its exercise’.39 It might be more judicious, though, to define it by the idea of centralization of political power.40 By such a definition it can be taken that, in a unitary state, authorities other than the state are not entitled to exercise political power; they are administrative bodies. Such political centralization is reflected, legally, by the idea of ‘the unity of law or of statute within the country (unity of legislation)’.41 In France, which is the land of the unitary state par excellence, political centralization is reflected in the terms of the Constitution by the principle that the Republic is indivisible. This principle means that ‘a single political power exercises sovereignty over the whole territory of the Republic, albeit that power may attribute certain competencies, including competencies differentiated by location, to other authorities, notably local authorities.’42 This idea may be worded differently: statute law remains a monopoly of the central state.43 This monopoly is narrowly interpreted. In 1991, the Conseil constitutionnel dismissed the idea that the Corsican Assembly might enjoy a sort of right to intervene in the legislative process even for bills concerning the region and considered that the mere reference in the act of the expression ‘the Corsican people’ was unconstitutional.44 Political centralization, specific to the unitary state, does not preclude a degree of flexibility in managing administrative issues. It is equally at ease with administrative centralization as with administrative decentralization. France is the prime example of the doubly (politically and administratively) centralized state that has evolved towards a form of decentralized unitary state in the administrative sense of the word.

Some countries of Europe, notably Italy and Spain, are evolving from ‘unitary’ states into ‘regional’ states.45 A form of political regionalism is thus developing that resembles federalism without being federalism. Let us take the case of Spain, whose 1978 Constitution recognizes the existence of a plurinational reality. It guarantees the ‘right to self-government of the nationalities and regions’ (Art 2). Two types of autonomous status are provided for by the Constitution that may be characterized as ordinary and special status. The Constitution also provides that historical nationalities (Catalonia, Euskadi, Galicia) may immediately accede to self-government by different channels. While the state retains all the attributes of sovereignty (foreign policy, defence, currency, Crown property, justice, criminal and commercial legislation), the regions have exclusive competence for town and country planning, tourism, health, agriculture, and so on. They have a wide autonomy, including legislative autonomy. But such entities cannot be considered sovereign and remain subject to the control of the law of the Spanish state. The institutional status of the self-governing communities remains largely ring-fenced by the state constitution.46 It is therefore not at all surprising, in terms of positive constitutional law, that the Spanish Constitutional Court should have annulled in 2010 a large part of the organic law of 19 July 2006 reforming the Statute of Autonomy of Catalonia. Yes, the state statute passed by the Cortes had been approved by its Catalan people further to a referendum, pursuant to the procedure in force;47 but that democratic approval was insufficient since, in the case in point, certain provisions of the Catalan statute purported to give the (p. 276) Autonomous Community the right to administer justice independently and autonomously, which was an encroachment on the competence of the Spanish state. Unsurprisingly the Constitutional Court also annulled other provisions for extending competencies, notably fiscal powers.

It is not wrong, therefore, to claim that the principle of sovereignty continues, despite all the tinkering with it, to govern most unitary states. Generally, the federal state appears to jurists steeped in a unitary state culture to be an abnormal state compared with the normal, unitary state.

2. Federalism is Perceived Differently in the Two Constitutional Traditions

If the state is thought of as being necessarily sovereign, it is not readily compatible with the federal structure. This contradiction is especially marked when dealing with the federal state, the description of which raises a serious problem for continental European jurists. State sovereignty is mainly manifested in the existence of an indivisible bundle of powers and competencies exercised by a single entity termed the state.48 But federalism radically challenges this form of state sovereignty by dividing what is indivisible between two tiers of government, the federation and its member states. There arises from this a natural infirmity of the federal government that is dominated by the ‘principle of incompleteness’: ‘a federal government is in essence incomplete’.49 European scholarship has come up with several more or less radical solutions to overcome the antinomy between federalism and sovereignty. One is to abandon the criterion of sovereignty and consider that the federal state is a state that is itself made up of states, which is to accept that there are such things as non-sovereign states: federated states. Another solution contemplated is to consider that the federal state is merely a highly decentralized state, but this solution presents the drawback of denying that there is anything particular about federalism. In short, European thinking has enormous difficulty with the federal arrangement because European thinking is state-centred.

In contradistinction, thinkers with a common law constitutional culture have studied federalism rather pragmatically. They have treated it as a fact that thrusts itself upon them and have not wondered whether it had to be reconciled with state sovereignty, a category that is not central to their world of thought. A commentator such as Dicey has a whole chapter on the question of federalism without making an issue of the contradiction with sovereignty. He studies parliamentary sovereignty, the cardinal principle of his country's law, at length, but ignores it when he studies US or Swiss federalism. Or again, Kenneth Wheare, the most influential writer on federalism, deals with the issue without ever broaching the potential conflict with sovereignty.50 US jurists reason differently because the basis of their thinking is not state sovereignty but the federal structure. From their standpoint, it is sovereignty that appears to be a legal absurdity.51 Or when they study true federations, they evoke the existence of a ‘double sovereignty’ or a ‘divided sovereignty’. This was the thesis of ‘dual federalism’ the Supreme (p. 277) Court was to invent after Justice Marshall52 to try to find a compromise between the supporters of the Union and the supporters of the member states. One of the most famous expressions of this doctrine is found in the Supreme Court ruling:

Our dual form of government has it perplexities, state and nation having different spheres of jurisdiction … but it must be kept in mind that we are one people, and the powers reserved to the states and those conferred on the nation are adapted to be exercised, whether independently or concurrently, to promote the general welfare material and moral.53

Such an argument is still taken up today, whether by the Supreme Court54 or by the scholarly literature.55 For their part, the proponents of ‘national federalism’ have resorted to the theory of the sovereignty of the people, which has proved the most economical way to overcome this obstacle.56 This theory effectively construes federalism as a simple form of separation of powers. Accordingly the idea of federation, that is, of the Union, that lies at the heart of the Articles of the Confederation and of the 1787 Constitution, is relegated to the subordinate rank of ‘auxiliary precaution’.57 We have there, then, a dominant interpretation of federalism that considers it not as a political form, a form of state, but simply as a ‘vertical’ separation of powers.58

In a nutshell, whereas continental European doctrine endeavours to think of federalism in its various guises59 through the form of the state, the federal state, common law jurists never refer to the federation as a ‘state’. This is very striking for the United States where the term ‘the Union’ substitutes for an abstract concept and saves answering the question of principle (federalism versus statism). For me, it has to be concluded from this that a state-centred analysis is unsuitable for describing the specificities of federal government. Federal government ‘seen from the inside … has nothing to do with a “state” ’60 with the result that it can be taken, not unparadoxically, that ‘American federalism’ allows us ‘to think of federalism outside of the theory of the federal state’.61 So Anglo-American legal scholars think of federalism without the theory of the federal state whereas continental European legal scholarship adapts (betrays?) its theory of state to make it compatible with federalism as a fact and to avoid the tropism of the unitary state.62

(p. 278) IV. The State as an Institution: Asymmetric Treatment

For a European constitutional law scholar, it goes without saying that the state is a personalized entity, separate from those who govern. This obvious point is reflected by the idea that the state is an artificial person. Thus the state is at one and the same time a political body and a juristic person. What is obvious here in Europe ceases to be so across the Channel or across the Atlantic. The absence of institutionalization of political power by Anglo-American scholarship confirms the argument proposed here that the concept of state is incomplete in the cultural area of what is called the common law.

1. Objectivization of Power by the State Conceived of as an Institutionalized Power (or Juristic Person)

In the European tradition, jurisprudence has inferred from this and other related facts that the state is to be distinguished from the sovereign, the ‘rulers’ and from the government.63 The state, writes Georges Burdeau, is ‘an institutionalized power’.64 And so it is from the vantage point of the institution that we shall examine the state now considered as a juristic person, an abstract entity that is an artificial person.65 Here the job is to think about the mediation between the sovereign (sovereignty) and the state, that is, to think about the objectivization of power.

It should next be emphasized that before being the subject of one or rather several legal theories, the state was first a practical challenge. Jurists had to invent a legal category, that of ‘person’ or ‘body’, to meet the circumstances of the time. The precursors of international law had to legally systematize interstate relations and overcome the diversity of forms of government of the different European states (absolute monarchy, constitutional monarchy).66 It took two centuries, from Grotius to Vattel, for this construction of the legal personality of the state to be constructed in international law doctrine.67 Constitutional law supplements international law by finding the way to think of making power perpetual and impersonal thanks to the concept of institution applied to the state.

2. Institutionalization or Perpetuation of Power

Historically, it was the practical challenge posed by the death of the sovereign that led jurists to invent solutions for institutionalizing power. French and English jurists turned to various legal fictions as a basis on which to perpetuate royal power. Thus the monarchic state brought about the first modern form of such institutionalization, as attested by Bossuet's celebrated apostrophe: ‘You die, O Princes, but your state must be immortal’.68 Accordingly, this neutralization of (p. 279) political power was to be able to serve the monarchical and democratic causes alike, the nation substituting for the king as a timeless category.69 But this institutionalization of power did not concern just the succession of rulers, sovereigns; it also affected the passing on of public offices and of public property. A judge authorized by the sovereign continues to hold office notwithstanding the death of the sovereign who personally invested him. The continuity of office (of public functions) is to be thought through; the continuity of property too. Property acquired or ceded by the state must remain so. Thus jurists were to invent distinctions between the state as owner and the rulers, between the republic as owner and the sovereign as administrator, and between office holder and office, inspired by the civil law distinction between the ownership of property and the enjoyment or use of it. The theory of the inalienability of public property is the fortunate corollary of the institutionalization of state power.

In declaring the state immortal, it is merely a matter of thinking of it as independent of its rulers’ existence. From this standpoint, the theory of state is heir to Roman-canon law, for solutions already hit upon by canon lawyers for thinking of the Church as an institution have been simply transposed and adapted.70

3. The Impersonalization of Power: Rulers Represent the State

The institution-person does not have as its sole function to perpetuate power; it forms a decisive divide between the public person and the private person. This can be understood from the fundamental issue of the ascribing of deeds done by people, rulers, to a legal entity, a juristic person, the state.

Here we shall start out from a far-sighted observation by Alf Ross:

certain acts that are in reality performed by definite individuals—and who else could perform an act—are spoken of as being performed not by the physical person in question, but by a subject called ‘the State’. The act, one can also say, is attributed to ‘the State’.71

It is striking to observe that even the most nominalist of jurists have been compelled to admit that, behind the deed done by an individual, the law has been bound to imagine a ‘subject that one imagines as it were standing behind him’.72 Whether they realize it or not they fall in with Thomas Hobbes, who plainly separates the republic (the state, the commonwealth) from the sovereign who is its representative, and to whom Hobbes ascribes a dual capacity: a ‘political capacity’ when he acts on behalf of the state and a ‘natural capacity’ when he acts for his own account, as a private individual. There results a split between the state and its rulers, and a duality of rulers who have a dual public (representative of the state) and private side (as a natural person). Thus through the institutionalization of power the great question of representation is played out. The state acts through its representatives. Before having a democratic meaning, whereby the rulers represent the ruled by virtue of a trust (Locke), representation has an eminently state or institutional meaning: rulers (like civil servants) represent the institution, the state. It is this objective dimension that Martin Loughlin describes when he says that sovereignty is ‘authoritative’.73

(p. 280) Thus, as it is conceived in Europe, the theory of the state as an institution allows us to handle the continuity of power and the attribution of acts to a juristic person. It is the essential complement to the subjective theory of sovereignty.74 Even so, one must be aware of the political danger of this doctrine when it is instrumentalized by the power in place. It can lead rulers to shelter behind the person of the state to escape their own responsibility for any negligence or wrongdoing on their part. The concept of the juristic person may thus be the screen behind which rulers hide and so endorse a denial of responsibility although responsibility is one of the fundamental concepts of modern constitutionalism.75

To conclude on this point, it is important to grasp the scope of this phenomenon of the impersonalization of power in the construction of the modern state: it exceeds the single field of constitutional law. It prohibits the ‘assetization’ of the state. Rulers are not the owners of their power; what is public is clearly separate from what is private. They hold competencies, legally, that they do not own.76

4. The Anglo-American Conception or the Non-Institutionalized State

It would be an exaggeration to claim that Anglo-American jurists are unfamiliar with the concept of the institutionalization of power. There are obviously fragments of it. English jurists too resorted to various legal fictions on which to found royal power, as is readily apparent from the Tudor metaphor of The King's Two Bodies,77 so masterfully reconstructed by Ernst Kantorowicz. But here too jurists do not have the possibility of turning to the concept of state in cases where European jurists are able to do so. To prove this hypothesis, we shall settle for a single piece of evidence, which is resort to the concept of the Crown in English law.78 One might also refer, in a broader domain than constitutional law, to the comparison Maitland makes between the English concept of ‘trust’ and Gierke's famous theory of the German corporation.

As might be expected, the legal concept of the Crown is not unequivocal and English jurists are still divided over its exact meaning.79 The term may designate the holder of various prerogatives the characteristics of which are that they are not fully subject to the rule of law. The Crown has also gradually become the symbol of government. More materially, one might say that the word ‘Crown’ simply meant formerly the king (Anson) or nowadays the queen (Wade). The throng of uses of the Crown in public law has been commented on.80 But the main point about this concept is that it apprehends the polity as a corporation, the English particularity of which is supposedly that it is here a ‘corporation sole’ and not a ‘corporation aggregate’. What the non-English jurist needs to know of the Crown is that it allows ‘a natural (p. 281) person [the king] to be depersonalized’ or that it has made it possible to raise the royal person ‘to a new rank: that of an institution of government’.81 In many respects the concept of the Crown reminds the European jurist of the concept of the state in the sense of institutionalized power and yet it is not the equivalent of the state.

The dividing line with the European tradition lies in the fact that English law does not view the Crown as a juristic person capable of incorporating the polity.82 As Kantorowicz writes, the ‘concept of Crown’ was not the artificial person, but ‘a personification in its own right, which was not only above its members, but also divorced from them.’83 The essential thing is, however, in the role of institutionalization played by the concept of the Crown in creating an indissociable whole with the monarch.84 There is much common ground between the formation of legal personality in the history of European law and that of the Crown in the history of English law, but these similarities do not preclude us from remarking upon one major difference: unlike the legal person or institution, the concept of the Crown has never been used to characterize the state as a polity endowed with a legal nature. In other words, the complete incorporation of the polity has not been made possible by the doctrine of the Crown. There has been ‘bodyfication’ but not ‘personification’. The upshot is that it can be said in the United Kingdom that ‘the state is not personalized’.85 A formula that one might equally well turn around by saying that, with respect to the European model of the complete state, the absence of personalization of power means there can be no talk of state in the United Kingdom.

The difficulty with this principle was raised by Maitland who observed that ‘English lawyers … liked their persons to be real’.86 The usually concrete view of the Crown, thought of as the monarch, or nowadays as the symbol of executive authority, thus proceeds from the ‘traditional antipathy of English common lawyers towards abstract thinking’.87 This turn of mind probably explains why English law has not adopted identical solutions to European public law with respect to the institutionalization of power: the attribution of a patrimony to the state, a clear dissociation between public management and private management, the gradual attribution of state responsibility for acts that are part of public administration etc.88 We shall not dally here over the visible political consequences of this doctrine of the Crown, which are both contrary to the theory of the rule of law (with respect to immunity) and to republicanism. It is not this residue of monarchism that is worth attending to but the fact that such a doctrine attests to the difficulty, already pointed out, for English law to escape from the domination of the common law and a private law style of thinking.89 Now, there is no possibility of constructing a theory of the state if one remains caught up in schemes that are the legacy of private law.

(p. 282) V. Conclusion

It would not be impossible to contemplate other examples to prove the difference in outlook between the state-centred doctrine of jurists from the Roman law family and the state-de-centred doctrine of jurists from the common law family. The place of the courts might be indicative of another major difference: the courts are related to the state in the European tradition but, rather, to civil society in the common law tradition. One might also point out the differences in the way in which citizenship and nationality are thought of in the various cultural spaces. But the purpose of this chapter has been to show that political power is not perceived in the same way by constitutional law scholars. In other words, the question of whether to ascribe a central position to the concept of ‘state’ is indeed a question that divides the world of constitutional law.

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                        Frederick Maitland, Collected Papers, vol III (1911)Find this resource:

                          Alexandre Passerin d’Entrèves, The Notion of State: An Introduction to Political Theory (1967)Find this resource:

                            Helmut Quaritsch, Staat und Souveränität (1970)Find this resource:

                              Alf Ross, ‘On the Concepts “State” and “State Organs” in Constitutional Law’ (1961) 5 Scandinavian Studies in Law 113Find this resource:

                                Carl Schmitt, Theory of the Constitution (Jeffrey Seitzer trans, [1928] 2008)Find this resource:

                                  Maurice Sunkin and Sebastian Payne (eds), The Nature of the Crown: A Legal and Political Analysis (1999)Find this resource:

                                    Michel Troper, Pour une théorie juridique de l’État (1994)Find this resource:

                                      Élisabeth Zoller, Introduction to Public Law: A Comparative Study (2008)Find this resource:

                                        Notes:

                                        (*) Translated by Christopher Sutcliffe.

                                        (1) In one dated but still valuable treatise, the state is presupposed in constitutional law with no possible variation in the meaning of the term being even contemplated: Manuel Garcia Pelayo, Tratado de derecho constitucional comparado ([1951] 7th edn, 1984), 101.

                                        (2) Giuseppe de Vergottini, Diritto costituzionale comparato (1984), 80–1.

                                        (3) Élisabeth Zoller, Introduction au droit public (2006), 121ff.

                                        (4) Marie-Claire Ponthoreau, Droit constitutionnel comparé (2010), 315.

                                        (5) H.C. Dowdall, ‘The Word State’ (1923) Law Quarterly Review 104–8.

                                        (6) Kenneth Dyson, The State Tradition in Western Europe (1980), 41. The section title is ‘England: an aberrant case’, 36–45.

                                        (7) Denis Baranger, Ecrire la constitution non écrite. Une introduction au droit politique britannique (2008), 245. Before him, Alessandro Passerin d’Entrèves perceptively made the same point noting that English lawyers preferred to speak of the Crown or of ‘government’, La notion d’Etat (French translation, 1969), 43–4.

                                        (8) See Martin Loughlin, ‘In Defence of Staatslehre’ (2009) 48(1) Der Staat 1–28 and Foundations of Public Law (2010), pioneering and heterodox works in which he constantly returns to there being no state in the conceptual arsenal of common law jurists.

                                        (9) A.V. Dicey, Introduction to the Study of the Law of the Constitution (1885).

                                        (10) Which does not preclude Dicey from thinking of constitutional law as a branch of public law understood as the law of the state. This is paradoxical, notes Baranger (n 7), 255. Similarly in Ivor Jennings, The Law and the Constitution (1959) the most prominent twentieth-century British constitutionalist does not even include ‘state’ in the subject index let alone have a chapter on it.

                                        (11) It suffices here to cite a contemporary British jurist Patrick Birkinshaw, Grievances, Remedies and the State (2nd edn, 1994), 9, cited by Baranger (n 7), 245.

                                        (12) Carl Schmitt employs Verfassungslehre to disqualify the use of Staatslehre, just as Rudolf Smend adopts the term Verfassungsrecht. See the present author's detailed study of this point, ‘Carl Schmitt, un juriste engagé’, preface to Carl Schmitt, Théorie de la Constitution (Verfassungslehre) (Lilyane Deroche-Gurcel trans, French edn, 1993), esp 59ff.

                                        (13) See for the Franco-German dialogue Christoph Schönberger, ‘Der “Staat” ’ der Allgemeinen Staatslehre: Anmerkungen zu einer eigenwilligen deutschen Disziplin im Vergleich mit Frankreich’ in Olivier Beaud and Erk Volkmar Heyen (eds), Une science juridique franco-allemande? (1999), 111ff.

                                        (14) This analytic definition is used above all in public international law and far less in constitutional law.

                                        (15) See Olivier Beaud, La Puissance de l’Etat (1994) and Olivier Beaud ‘La notion d’Etat’ (1991) Archives de philosophie du droit 119.

                                        (16) Adhémar Esmein, the founder of constitutional law as a discipline in France, wrote tersely: ‘the constitution determines the form of the state and the form of the republic’. Raymond Carré de Malberg defined the constitution, further to German scholarship, as the ‘articles of association of the state’.

                                        (17) On the constitution as a pact, see the two major commentators Maurice Hauriou, Précis de droit constitutionnel (1923, 1929) and Carl Schmitt, Verfassungslehre (1928), ch 6.

                                        (18) Based on the arguments in Dieter Grimm, Braucht Europa eine Verfassung? (1995), setting out the ‘statist’ terms of the debate.

                                        (19) On the rule of law, also see Chapter 10.

                                        (20) Cited by Ponthoreau (n 4), 322.

                                        (21) Dicey (n 9) (10th edn, 1895), 148.

                                        (22) As is astutely noted by Zoller (n 3), 105.

                                        (23) See the keen comments by Baranger (n 7), 255.

                                        (24) Bruce Ackerman, Decline and Fall of the American Republic (2010).

                                        (25) Dicey (n 9), 259–60. Cited by Baranger (n 7), 256.

                                        (26) The state described here is a ‘judicial State’ (Etat de justice). Space is too short here to describe the convergence between the two traditions. In Europe, too, Rechtsstaat becomes Justizstaat.

                                        (27) Jesse H. Choper, ‘The Scope of National Power vis-à-vis the States: The Dispensability of Judicial Review’ (1977) 186 Yale Law Journal 1613.

                                        (28) One thinks here obviously of the work of Bruce Ackerman, whose historical and ‘political science’ orientation makes him a peculiar figure in the United States. Cass Sunstein and Mark Tushnet are other non-mainstream figures.

                                        (29) See Chapter 17.

                                        (30) See Chapter 17 by Michel Troper on the various meanings of sovereignty.

                                        (31) Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira (eds), Oxford Handbook of Law and Politics (2008).

                                        (32) A notable exception is Martin Loughlin, ‘Ten Tenets of Sovereignty’ in Neil Walker (ed), Sovereignty in Transition (2005), 55.

                                        (33) Dictionnaire de culture juridique (2004).

                                        (34) Olivier Duhamel and Yves Mény (eds), Dictionnaire constitutionnel (1992).

                                        (35) Noberto Bobbio, Nicola Matteucci, and Gianfranco Pasquino (eds), Dizionario di politica (2004).

                                        (36) The great Herman Heller might be cited here.

                                        (37) Either by categorically denying the very idea of sovereignty, which was perceived of as metaphysical (Duguit, Kelsen) or by replacing it with the idea of public or state power (Staatsgewalt) (Jellinek).

                                        (38) On federalism, see further Chapter 27.

                                        (39) Georges Burdeau, Traité de science politique. Vol II: L’Etat (3rd edn, 1980), 368.

                                        (40) See on this Maurice Hauriou, Précis de droit administratif (1911), 116.

                                        (41) Ibid (11th edn, 1927), 44.

                                        (42) Guy Carcassonne, La constitution (6th edn, 2004), 40 n 7.

                                        (43) Article 34 of the French Constitution of the Fifth Republic states tersely: ‘Parliament shall pass statutes’ (La loi est votée par le Parlement).

                                        (44) Conseil constitutionnel, no 91-290 DC, 9 May 1991 (Corsica).

                                        (45) For a sound outline in French see Philippe Lauvaux, Les grandes démocraties contemporaines (3rd edn, 2004), 790ff, esp nn 271ff (Italy) and nn 297ff (Spain).

                                        (46) See esp ibid, 994–5 n 298.

                                        (47) Sentencia 31/2001 of 28 June 2010.

                                        (48) Following Herbert Krüger, Allgemeine Staatslehre (1964), I have proposed naming this the ‘principle of the state's omnicompetence’. See Olivier Beaud, La puissance de l’Etat (1994), 144.

                                        (49) Élisabeth Zoller, ‘Aspects internationaux du droit constitutionnel. Contribution à la théorie de la fédération d’Etats’ (2003) 294 Collected Courses of the Hague Academy 119–20 n 129.

                                        (50) ‘By the federal principle, I mean the method of dividing powers so that the general and regional governments are each, within a sphere, coordinate and independent’: Kenneth Wheare, Federal Government (4th edn, 1947), 10.

                                        (51) ‘Sovereignty, in the classic sense, has no meaning: divided as power is, the element of absoluteness which is essential to the concept of sovereignty is not present’: Richard Leach, American Federalism (1970), 1.

                                        (52) For a very good recent description of such federalism see Robert Schütze, From Dual Federalism to Cooperative Federalism (2010).

                                        (53) Hoke v United States 227 US 308 (1913). Cited by Edward S. Corwin, ‘Constitution versus Constitutional Theory’ in Edward S. Corwin (ed), American Constitutional History Essays (1964), 103.

                                        (54) Justice Kennedy in US Term Limits, Inc v Thornton 514 US 779 (1995).

                                        (55)

                                        Federalism as an American constitutional principle may be defined as the existence of two tiers of sovereignty in which each person is a citizen of the nation in respect of the powers and obligations of that government, but also a citizen of the state where he lives.

                                        Theodore Lowi, ‘Le fédéralisme 1787–1987’ in Marie-France Toinet (ed), Et la constitution créa l’Amérique (1987), 104.

                                        (56) Hit upon by James Wilson, this idea is the crux of MacCulloch v Maryland. See the excellent book by Samuel Beer, To Make a Nation: The Rediscovery of American Federalism (1993).

                                        (57) Ibid ch 9.

                                        (58) Here again Kenneth Wheare is quite representative of the mainstream as pointed out by Murray Forsyth, Union of States (1981), 2.

                                        (59) This ideal-type describes European (German, Swiss), North American (United States, Canada), Central and South American (Mexico, Brazil) and even Australian federalism.

                                        (60) Zoller (n 49) 61 n 21.

                                        (61) Ibid 73 n 37.

                                        (62) It is to escape this dead-end that I proposed thinking about the federation without resort to the theory of the state. See Olivier Beaud, Théorie de la Fédération (2nd edn, 2009). See also Christoph Schönberger, Unionsbürger (2005).

                                        (63) Loughlin, Foundations (n 8), 183ff.

                                        (64) Georges Burdeau, Traité de science politique, vol II (1980).

                                        (65) The theory of juridical personality of the state has occupied many jurists. It suffers from the absolutist image bequeathed by German scholarship that made the state an artificial person with subjective rights of domination over individuals. For a description of this Gerber–Laband doctrine see Olivier Jouanjan, Une histoire de la pensée juridique allemande (2004).

                                        (66) Helmut Quaritsch, Staat und Souveränität (1970), 475.

                                        (67) See on this the highly instructive argument by Emmanuelle Jouannet, Emer de Vattel et l’émergence doctrinale du droit international classique (1998).

                                        (68) Policy derived from Holy Scripture itself, cited by Marcel Prélot and Jean Boulouis, Institutions politiques et droit constitutionnel (6th edn, 1975), 16.

                                        (69) See esp Ralph Giesey, Cérémonial et puissance souveraine. France VXe–XVIIe siècles (1987), 85.

                                        (70) The remarkable work by Ernst Kantorowicz, The King's Two Bodies (1957) is invariably cited, but this idea is commonplace in the history of law.

                                        (71) Alf Ross, ‘On the Concepts “State” and “State Organs” in Constitutional Law’ (1961) 5 Scandinavian Studies in Law 115.

                                        (72) Hans Kelsen, ‘Droit et Etat du point de vue d’une théorie pure’ (1936) Annales de l’Institut de droit comparé de l’Université de Paris 48.

                                        (73) Loughlin (n 32).

                                        (74) In a way, I am trying to tip into the theory of the institution what other commentators (here Loughlin and Baranger) pigeon-hole under sovereignty. But what matters in the end is that both theories relate to one theory, that of the state.

                                        (75) On constitutionalism, see further Chapter 8.

                                        (76) Here one cannot overemphasize the importance of the section Jellinek devotes to this issue as ‘Die Rechstellung der Staatsorgane’ in Allgemeine Staatslehre (1911), 560ff.

                                        (77) See on this Kantorowicz (n 70), the reading of which is greatly facilitated by the erudite warnings in Giesey (n 69), 9ff.

                                        (78) There are probably others.

                                        (79) See Maurice Sunkin and Sebastian Payne, The Nature of the Crown: A Legal and Political Analysis (1999). My thanks to Denis Baranger for drawing my attention to this work which is central to the subject.

                                        (80) Baranger (n 7), 204–14.

                                        (81) These two formulas are borrowings from ch 4, ‘Ce qu’il est advenu de la Couronne’ in Baranger (n 7), 197 and 200.

                                        (82) Martin Loughlin, ‘The State, the Crown and the Law’ in Sunkin and Payne (n 79), 55–6 (interpreting the history of English law and Kantorowicz, The King's Two Bodies).

                                        (83) Kantorowicz (n 70), 382.

                                        (84) Loughlin (n 82), 33.

                                        (85) Baranger (n 7), 264.

                                        (86) Frederic William Maitland, ‘The Crown as Corporation’ (1910) in Frederic William Maitland, Collected Papers, vol III (1911), 246.

                                        (87) Loughlin (n 82), 59.

                                        (88) See the developments by Martin Loughlin who shows the harmful consequences of over-use of the concept of the Crown.

                                        (89) Loughlin (n 82), 76.