The Origins of State and Law

Anirudh Sridhar

The Genealogical Approach

“All philosophers have the common failing of starting out from man as he is now and
thinking they can reach their goal through an analysis of him. They involuntarily think of
‘man’ as an aeterna veritas, as something that remains constant in the midst of all flux, as a
sure measure of things. Everything the philosopher has declared about man is, however, no
more than a testimony as to the man of a very limited period of time. Lack of historical sense
is the family failing of all philosophers.” – Nietzsche, Human, all too Human
“All concepts in which an entire process is semiotically concentrated elude definition; only
that which has no history is definable.” – Nietzsche, On the Genealogy of Morals
Public Law
“The system of law in every country is divided into ‘that part which regulates the powers of
the state, considered as a corporation or body politic; and that which regulates the conduct of
the several members of which this corporation is composed’. The former deals with the
government, and is ‘the law which constitutes’, while ‘the latter, the law which is
constituted’. The former, he elaborated, ‘may with propriety, though not in the common
acceptation, be called the public; the latter the private law’” – John Millar, An Historical
View of the English Government (Extract from Martin Loughlin, Foundations of Public Law)
“Charles I at the end of the Civil War was that the king ‘had a wicked design to subvert the
ancient and fundamental laws and liberties of this nation’. Forty years later, after James II
had fled the kingdom, in a prelude to the enactment of the Bill of Rights in January 1689, the
Commons declared not only that the king had ‘endeavoured to subvert the constitution of the
kingdom’ but that he had ‘violated the fundamental laws’” – Martin Loughlin, Foundations
of Public Law
Person and Office
“Thou art Peter, and upon this rock I will build my church […] And I will give unto thee the
keys of the kingdom of heaven: and whatsoever thou shalt bind on earth shall be bound in
heaven: and whatsoever thou shalt loose on earth shall be loosed in heaven.” – Matthew
xvi.18–19
Doctrine of the King’s Two Bodies:
“The king has in him two Bodies, viz., a Body natural, and a Body politic. His Body natural
(if it be considered in itself) is a Body mortal, subject to all Infirmities that come by Nature or
Accident, to the Imbecility of Infancy or old Age […] But his Body politic is a Body that
cannot be seen or handled, consisting of Policy and Government, and constituted for the
Direction of the People, and the management of the public weal, and this Body is utterly void
of Infancy, and old Age, and other natural Defects and Imbecilities, which the Body natural is
subject to, and for this Cause, what the King does in his Body politic, cannot be invalidated
or frustrated by any Disability in his natural Body.” – Ernst Kantorowicz, The King’s Two
Bodies
“Twin-born with greatness, subject to the breath/ Of every fool, whose sense no more can
feel/ But his own wringing. What infinite heart’s ease/ Must kings neglect that private men
enjoy? [...] “What kind of god art thou, that suffer’st more/ Of mortal griefs than do thy
worshippers” – Shakespeare, Henry V
“[…] consideration like an angel came/ And whipped th’ offending Adam out of him” –
Shakespeare, Henry V
Origins of ‘State’
State = Status
“mantenere lo stato” (The Prince must act for the ‘maintenance of his State’) – Machiavelli,
Il Principe, 1532
Coup d'état – blow against your status
Head-Body Metaphor:
“[I]t is neither the wals, neither the persons, that maketh the citie, but the union of the people
under the same soveraigntie of government.”
“All the people in generall, and (as it were) in one bodie’ swear faithfull alleageance to one
soveraigne monarch as head of state.”
“The sovereign has a duty to care for the health & welfare of the whole state […] and to
protect both “the subjects in particular and the whole bodie of the state.” – Jean Bodin, The
Six Books of a Common Weal, 1576
“Kings are in the word of GOD it selfe called Gods, as being his Lieutenants and Vice-
gerents, and are endowed by God with absolute authority over the body of the whole State.” –
James I speech to Houses of Parliament, 1605
Body:
“Sovereign power is held at all time by the body of the people (state), who have the right to
remove any ruler they judge to be a rebel to the law and to the state” – Milton, The Tenure of
Kings and Magistrates, 1649
Hobbes’s Fictional Theory of the State (Leviathan, 1651)
“I shall be speaking not of men but in the abstract of the nature of the commonwealth or
state”
“A PERSON, is he, whose words or actions are considered, either as his own, or as
representing the words or actions of another man, or of any other thing to whom they are
attributed, whether Truly or by Fiction. When they are considered as his owne, then is he
called a Naturall Person: And when they are considered as representing the words and actions
of another, then is he a Feigned or Artificiall person.”
“I authorise and give up my Right of Governing my selfe, to this Man, or to this Assembly of
men, on this condition, that thou give up thy Right to him, and Authorise all his Actions in
like manner.”
“Of Persons Artificiall, some have their words and actions Owned by those whom they
represent. And then the Person is the Actor; and he that owneth his.”
“A Multitude of men, are made One Person, when they are by one man, or one Person,
Represented […] A reall Unitie of them all, in one and the same Person, made by Covenant
of every man with every man.”
“The Multitude so united in one Person, is called a COMMON-WEALTH or CIVITAS or
STATE.”
Pufendorf’s Moral Person (The Natural Law, 1672)
“The State is to exist like one Person, endued with Understanding and Will, and performing
other particular Acts, distinct from those of the private Members”
“The most proper Definition of a Civil State seems to be this, It is a compound Moral Person,
whose Will, united and tied together by those Covenants which before pass’d among the
Multitude, is deem’d the Will of all; to the End, that it may use and apply the Strength and
Riches of private Persons towards maintaining the common Peace and Security”
Emer de Vattel
“States are bodies politic, societies of men united together to procure their mutual safety and
advantage” – The Law of Nations, 1758
William Blackstone’s Commentaries on the Laws of England, 1765
“The only true and natural foundations of society are the wants and the fears of individuals”
“Inasmuch as political communities are made up of many natural persons, each of whom has
his particular will and inclination, these several wills cannot by any natural union be joined
together in such a way as to produce one uniform will of the whole”
“A political union of the multitude” where everyone must agree “to submit their own private
wills to the will of one man, or of one or more assemblies of men, to whom the supreme
authority is entrusted”
“Supreme power” = “the power of making laws”
The Utilitarians
“The season of Fiction is now over” – Bentham, Fragment on Government, 1776
State = Government
“Offences against the state, that is, particular persons invested with powers to be exercised
for the benefit of the rest”.
“If there were no such persons equipped with such powers, there would be no such thing as a
state” – Bentham, Introduction to the Principles of Morals and Legislation, 1789
State: “the individual person, or the body of individual persons, which bears the supreme
powers in an independent political society” – Austin, The Province of Jurisprudence
Determined, 1832
“In Dicey’s framework, the principle of government under law was converted into ‘the rule
of law’, by which he meant the universal subjection to the ordinary law as applied by the
ordinary courts. In this form, the concept of ‘the rule of law’ reinforced the overarching
doctrine of parliamentary sovereignty to assert that the most authoritative expression of law is
the ordinary law enacted by Act of Parliament.” – Martin Loughlin, Foundations of Public
Law (quoting Albert Dicey, Introduction to the Study of the Law of the Constitution, 1885)

Modern uses of Public Law and the Fictional Theory of State

1) Intention of permanence
2) Inter-state relationships/ global community
3) Limits of political obligation
4) Public Trust Doctrine