Legitimate Governance Within the State

Abstract

The theory of the state is traditionally a theory of law in a social context. Since the state is a relatively recent phenomenon, theorizing about it only started at the beginning of this century. Georg Jellinek’s ‘Allgemeine Staatslehre’, published in 1900, is often seen as the official starting point. On the basis of neo-Kantian thought Jellinek distinguishes between the theory of the state as a social phenomenon and the theory of the state as a legal phenomenon (Jellinek, 1900: 50).¹ Referring to the differences between facts and norms, he argues that both perspectives must be clearly separated.² While the social theory of the state purports to use empirical methods, research on the state as a legal institution is purely based on normative methods. Jellinek’s approach has been criticized by Hans Kelsen, a distinguished follower of legal positivism. Like Jellinek Kelsen emphasizes the neo-Kantian point of view. He concludes, however, that a social theory of the state is not possible, because the state and the legal order are one and the same (Kelsen, 1984). In political science, an opposite but equally extreme position was taken by David Easton, who argued that the concept of the state should be abolished because of its legal connotation (Easton 1971).³ According to Easton, it is political behavior that really matters (behaviorism). From the point of view of the method used and subject of research, Easton’s perspective appears to be just as restrictive as that of Kelsen.While Kelsen maintains that a theory of the state can only be based on a normative method that focuses on legal judgments, Easton concentrates on the empirical study of political behavior, while denying the value of the concept of the state in scientific research.

This is Jellinek’s thesis of the ‘Doppelnatur des Staates’, which has been typified as the ‘Zwei-Seiten-Theorie’.

Although he argues that the legal theory of the state must be related to sociological aspects. Jellinek. however, docs not maintain a strict separation of norms and facts (Koch, 1977: 65).

Jellinek employs similar arguments to discern theoretical and practical science of the state. The latter one he calls ‘polities’.