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chapter 12
conceptions of the state
olivier beaud *
Paris
I. Introduction
II. Two Distinct Ways of Viewing the Relationship between
Constitution and State
1. The State as a Presupposition of the Constitution
2. A Constitution Thought of Without the State: The Rule of Law
Imposes its Vision of a Simple ‘Government’ of Public Affairs
III. State, Sovereignty, and Federalism: Can the State be
Thought of as Anything Other than the Unitary State?
1. Sovereignty as a Criterion of the State and the Tropism
of the Unitary State
2. Federalism is Perceived Differently in the Two Constitutional
Traditions
IV. The State as an Institution: Asymmetric Treatment
1. Objectivization of Power by the State Conceived of as an
Institutionalized Power (or Juristic Person)
2. Institutionalization or Perpetuation of Power
3. The Impersonalization of Power: Rulers Represent the State
4. The Anglo-American Conception or the
Non-Institutionalized State
V. Conclusion
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 edi-
tors 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.
* Translated by Christopher Sutcliffe.
 ideas
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 recog-
nized 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 constitu-
269 tional 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
271 and has not done so since.5 It will be objected that it is not because there is no word for some-
271 thing 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,
272 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
274 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’
274 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
276
at the heart of British publicists’ thinking.11 This observation is even more valid with respect to
278 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
278
278
279
1
In one dated but still valuable treatise, the state is presupposed in constitutional law with no possible
280 variation in the meaning of the term being even contemplated: Manuel Garcia Pelayo, Tratado de derecho
constitucional comparado ([1951] 7th edn, 1984), 101.
282 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.
 conceptions of the state 
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 sto-
len a march on jurists by questioning whether the state is a universal phenomenon. The argu-
ment 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 scholar-
ship 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
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.
 ideas
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 consti-
tution 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 requis-
ites 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 prom-
ulgated like any statute. In the instrument of promulgation it is stated that it must be per-
formed 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 consti-
tutionalists 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 con-
stitution 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 con-
cept 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
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.
 conceptions of the state 
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 consti-
tution 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 think-
able, 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 feder-
ation) 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 text-
books and casebooks. US constitutional jurists interested in institutional law pass for hetero-
dox figures.28
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.
 ideas
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 none-
theless 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 con-
stitutional 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 dom-
inance, 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 constitu-
tional 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
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.
 conceptions of the state 
whose Power lies in its founding, in its structure and in its exercise’.39 It might be more judi-
cious, 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 exer-
cise 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 con-
cerning 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 legisla-
tion), 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 con-
stitutional 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 ref-
erendum, 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
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.
 ideas
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 fis-
cal 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 sover-
eignty is mainly manifested in the existence of an indivisible bundle of powers and competen-
cies 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 gov-
ernment 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 decen-
tralized state, but this solution presents the drawback of denying that there is anything par-
ticular 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 fed-
eralism 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 influ-
ential 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
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.
 conceptions of the state 
Court was to invent after Justice Marshall52 to try to find a compromise between the support-
ers 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 independ-
ently 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 pow-
ers. 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 ‘aux-
iliary precaution’.57 We have there, then, a dominant interpretation of federalism that consid-
ers 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 (fed-
eralism 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
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).
 ideas
IV. The State as an Institution:
Asymmetric Treatment
For a European constitutional law scholar, it goes without saying that the state is a personal-
ized 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 schol-
arship confirms the argument proposed here that the concept of state is incomplete in the cul-
tural 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 sov-
ereign (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 govern-
ment 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 interna-
tional 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 apostro-
phe: ‘You die, O Princes, but your state must be immortal’.68 Accordingly, this neutralization of
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.
 conceptions of the state 
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 notwith-
standing 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 deci-
sive 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 juris-
tic 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 mean-
ing: 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
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).
 ideas
Thus, as it is conceived in Europe, the theory of the state as an institution allows us to han-
dle 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 polit-
ical 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 con-
cept 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 pre-
rogatives 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
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.
 conceptions of the state   ideas

person [the king] to be depersonalized’ or that it has made it possible to raise the royal person V. Conclusion
‘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 It would not be impossible to contemplate other examples to prove the difference in outlook
power and yet it is not the equivalent of the state. between the state-centred doctrine of jurists from the Roman law family and the state-de-
The dividing line with the European tradition lies in the fact that English law does not centred doctrine of jurists from the common law family. The place of the courts might be
view the Crown as a juristic person capable of incorporating the polity.82 As Kantorowicz indicative of another major difference: the courts are related to the state in the European tradi-
writes, the ‘concept of Crown’ was not the artificial person, but ‘a personification in its own tion but, rather, to civil society in the common law tradition. One might also point out the dif-
right, which was not only above its members, but also divorced from them.’83 The essential ferences in the way in which citizenship and nationality are thought of in the various cultural
thing is, however, in the role of institutionalization played by the concept of the Crown in spaces. But the purpose of this chapter has been to show that political power is not perceived
creating an indissociable whole with the monarch.84 There is much common ground between in the same way by constitutional law scholars. In other words, the question of whether to
the formation of legal personality in the history of European law and that of the Crown in the ascribe a central position to the concept of ‘state’ is indeed a question that divides the world of
history of English law, but these similarities do not preclude us from remarking upon one constitutional law.
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 Bibliography
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 For a very good bibliography, related to public law and state, see Martin Loughlin, Foundations
equally well turn around by saying that, with respect to the European model of the complete of Public Law (2010), 468–510
state, the absence of personalization of power means there can be no talk of state in the Olivier Beaud, La puissance de l’Etat (1994)
United Kingdom. Olivier Beaud, Théorie de la Fédération (2nd edn, 2009)
The difficulty with this principle was raised by Maitland who observed that ‘English law- Samuel Beer, To Make a Nation: The Rediscovery of American Federalism (1993)
Ernst-Wolfgang Böckenförde, Staat, Verfassung, Demokratie (1991)
yers . . . liked their persons to be real’.86 The usually concrete view of the Crown, thought of as
Kenneth Dyson, The State Tradition in Western Europe: A Study of an Idea and Institution (1980)
the monarch, or nowadays as the symbol of executive authority, thus proceeds from the ‘tra-
Hermann Heller, ‘Staatslehre’ in Gesammelte Schriften, vol 3 ([1934] 1971)
ditional antipathy of English common lawyers towards abstract thinking’.87 This turn of mind
Erst Kantorowicz, The King’s Two Bodies: A Study in Mediaeval Political Theology (1957)
probably explains why English law has not adopted identical solutions to European public
Martin Loughlin, Foundations of Public Law (2010)
law with respect to the institutionalization of power: the attribution of a patrimony to the Martin Loughlin, ‘In Defence of Staatslehre’ (2009) 48 (1) Der Staat 1
state, a clear dissociation between public management and private management, the gradual Martin Loughlin, ‘The State, the Crown and the Law’ in Maurice Sunkin and Sebastian Payne
attribution of state responsibility for acts that are part of public administration etc.88 We shall (eds), The Nature of the Crown: A Legal and Political Analysis (1999)
not dally here over the visible political consequences of this doctrine of the Crown, which are Frederick Maitland, Collected Papers, vol III (1911)
both contrary to the theory of the rule of law (with respect to immunity) and to republican- Alexandre Passerin d’Entrèves, The Notion of State: An Introduction to Political Theory (1967)
ism. It is not this residue of monarchism that is worth attending to but the fact that such a Helmut Quaritsch, Staat und Souveränität (1970)
doctrine attests to the difficulty, already pointed out, for English law to escape from the dom- Alf Ross, ‘On the Concepts “State” and “State Organs” in Constitutional Law’ (1961) 5
ination of the common law and a private law style of thinking.89 Now, there is no possibility Scandinavian Studies in Law 113
of constructing a theory of the state if one remains caught up in schemes that are the legacy Carl Schmitt, Theory of the Constitution (Jeffrey Seitzer trans, [1928] 2008)
of private law. Maurice Sunkin and Sebastian Payne (eds), The Nature of the Crown: A Legal and Political
Analysis (1999)
Michel Troper, Pour une théorie juridique de l’État (1994)
81
These two formulas are borrowings from ch 4, ‘Ce qu’il est advenu de la Couronne’ in Baranger (n 7), Élisabeth Zoller, Introduction to Public Law: A Comparative Study (2008)
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.