Concept and Subject Matter of General Theory of the State
Die General Theory of the State is a field of legal science that systematically deals with the foundations, structures, and functions of the state. It analyzes state phenomena independent of the particular features of individual states and develops general principles, categories, and terms for the description and interpretation of state orders. The General Theory of the State regards itself as an analytical discipline, examining both historical-empirical and normative-conceptual aspects of the state.
Significance and Purpose
The aim of the General Theory of the State is to develop a comprehensive, theory-driven approach to the state. It provides a unified conceptual and theoretical framework that serves as the basis for understanding and further consideration of individual national legal systems. In doing so, it especially addresses questions of the origin, legitimacy, organization, tasks, and functions of the state.
Fundamental Terms and Distinctions
Concept of State
At the center of the General Theory of the State is the concept of the state. According to the classical three-element doctrine, attributed to constitutional lawyer Georg Jellinek, the state consists of three essential elements:
- Territory: The spatially defined area over which the authority of the state extends.
- People: The totality of people who are connected by a legal bond of membership (citizenship).
- Sovereign authority: The exercise of sovereign power over persons and property within the territory. This includes both original law-making and law enforcement.
Distinction from Other Systems
The General Theory of the State distinguishes the state from other forms of rule, such as international organizations, associations, or religious communities. It examines the specific legitimacy of state authority, its distinction from private powers and supranational entities.
Essential Contents of the General Theory of the State
Origin and Development of the State
The General Theory of the State analyzes various theories of the state’s origin:
- Contract Theories: State as the result of a social contract, for example in the work of Hobbes, Locke, or Rousseau.
- Power and Force Theories: Emphasis on the role of the monopoly on force to ensure order and peace.
- Organic Theories: State as an entity that has developed out of social, historical, and cultural processes.
Legitimation of State Rule
A central issue is the justification of state authority and its exercise:
- Democratic Legitimation: State power is considered legitimized through the participation and consent of the population represented in the state authority.
- Legality and Rule of Law: State action is bound by general, forward-looking, and legally established norms.
Doctrine of State Purpose and Tasks
The General Theory of the State deals with the purpose of the state and its functions. It distinguishes fundamental state tasks such as security, order, lawmaking, and protection of rights from additional, evolving areas of responsibility in the social, cultural, or economic sphere.
Forms of State and Structures of Rule
Forms of State and Government
The General Theory of the State classifies and compares different forms of government, such as monarchy, republic, democracy, dictatorship, and mixed forms. It examines their characteristic structures and modes of operation as well as the modalities of power distribution and exercise.
Systems of Government
Within each form of state, the General Theory of the State differentiates various systems of government, for example the parliamentary, presidential, or semi-presidential system. It analyzes the relationships between state organs and the mechanisms of power control.
Separation of Powers and Constitutional Principles
A central principle of the General Theory of the State is separation of powers. It divides the legislative, executive, and judicial functions of the state to safeguard freedom and legal certainty.
- Legislative: Law-making power
- Executive: Executive power
- Judiciary: Judicial power
The formation and differentiation of these functions is examined and assessed according to specific constitutional requirements.
The State within the Legal System
Relationship to Other Legal Subjects
The General Theory of the State examines the relationship of the state to its citizens (personal nature and bearer of state power), to other states (subject of international law), and to international organizations.
State and Constitution
A particular focus is on the relationship between state and constitution. The constitution is understood as the fundamental legal order that determines the organization, tasks, and limits of state authority as well as the fundamental rights of the population.
Modern Developments in General Theory of the State
Supranationality and Globalization
In view of increasing international interconnections, the General Theory of the State also deals with questions of supranationality, for example in the context of the European Union, and with globalization. Here, the effects on sovereignty, legislative authority, and the state’s scope of action are analyzed.
Transformation of State Functions
Modern developments such as digitalization present new requirements for statehood, administration, and the rule of law. Questions concerning state dissolution, state succession, or the transformation to new forms of statehood (e.g., through federalism or decentralization) are also part of the subject matter.
Conclusion
The General Theory of the State forms the theoretical foundation for understanding the state and constitutional law. It provides fundamental analytical categories and a consistent system for dealing with state organization, functions, and developments. As an independent discipline within legal science, it remains dynamic and open to new challenges, especially due to social, economic, and technological changes.
Frequently Asked Questions
What role does the General Theory of the State play in the system of public law?
The General Theory of the State holds a fundamental position within public law, as it serves as an overarching discipline providing the theoretical and systematic foundations of the state, its organs, functions, and essential legal principles. It defines central concepts such as sovereignty, authority, form of state, structure of state, legitimacy, and legality. This allows the General Theory of the State to foster a deeper understanding of the functioning of state organizations and their interaction with other national and supranational entities. Its findings are indispensable for the interpretation and application of constitutional and administrative law, as well as for the further development of state structures. It also acts as a bridge to other disciplines such as political science, while maintaining a focus on legal concepts and methods. In practice, courts and legislative bodies, among others, draw upon the terms and theories of the General Theory of the State to assess constitutional issues and develop viable legal solutions.
How does the General Theory of the State influence the design of modern constitutions?
The General Theory of the State has a significant impact on the design of modern constitutions, as it scientifically analyzes and systematizes the basic structures of state order. It provides the theoretical underpinning for core principles such as separation of powers, rule of law, democracy, and federalism. In developing or reforming constitutions, lawmakers often take into account these systematic insights to align the theory and practice of state organization. As a result, traditional models (such as the distinction between executive, legislative, and judiciary) are applied and adapted to the realities of new forms of state or international unions. Furthermore, it offers tools for evaluating and optimizing constitutional regulations, especially against the background of social, technical, or international developments.
What is the legal significance of distinguishing between the people, the territory, and the sovereign authority of a state?
In the legal context, differentiating between the people, the territory, and the sovereign authority forms a methodological approach for precisely determining what constitutes a state (the so-called three-element doctrine by Georg Jellinek). This distinction is particularly relevant when delineating state sovereignty, allocating powers, and establishing international legal subjectivity. Each of these terms clarifies a specific aspect of the state’s structure: The people refers to the legally constituted community, the territory to the area of effect, and the sovereign authority to the original ruling power over the first two elements. In court proceedings—for instance, with regard to questions of citizenship, territorial claims, or the exercise of sovereign power—this differentiation is essential to clearly define legal competencies and responsibilities.
How does the General Theory of the State differ from other legal disciplines?
The General Theory of the State differs from other areas of public law, particularly constitutional and administrative law, through its abstract-theoretical approach. While constitutional law examines specific constitutional provisions of a particular state and administrative law deals with the organization and actions of public administration, the General Theory of the State addresses fundamental questions of state organization, independent of specific cases or national circumstances. It abstracts from concrete normative texts and develops universally valid theories, categories, and methods that serve as an overarching knowledge base. In this way, the General Theory of the State represents a kind of ‘meta-level’ within legal science; it has a guiding, systematizing, and explanatory function for the doctrinal practice of the other disciplines.
What is the significance of the fundamental concepts of the theory of the state for legal argumentation and jurisprudence?
Fundamental concepts from the theory of the state, such as sovereignty, legitimation, state objectives, or separation of powers, are indispensable for precise legal argumentation. They serve as analytical categories that make it possible to classify legal facts systematically and justify them transparently. Courts, administrations, and academia use these terms to assess the scope and viability of state decisions. State theory concepts are also often applied directly for interpreting indeterminate legal terms (for example, when assessing constitutional matters before the Federal Constitutional Court). In academic opinions and commentaries, theoretical models from the theory of the state are regularly used, resulting in a high degree of consistency and theoretical grounding in public law.
What function does the General Theory of the State fulfill in the context of the international community of states?
Within the framework of the international community of states, the General Theory of the State takes on a mediating and organizing role. It analyzes how traditional constitutional categories such as sovereignty or territorial integrity must be further developed in view of supranational unions (e.g. European Union, United Nations) to do justice to changed international relations. This provides a key for classifying new phenomena such as shared sovereignty, transnational legal harmonization, or the integration of states into supra-state legal systems. Especially in international legal dealings, the General Theory of the State enables the development of comparative approaches for resolving conflicts between different state systems and legal orders.
