The Modern Idea of the State

The Modern Idea of the State


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The Modern Idea of the State by H. Krabbe

In 1906, Professor Krabbe of the University of Leyden wrote Die Lehre der Rechtssouveränetät and in 1915 and 1917 further elaborations of this earlier volume which are now put forth under the title of The Modern Idea of the State. The translation is the work of Professors George H. Sabine and Walter J. Shepard, who have also written an elaborate introduction to the volume.

Professor Krabbe's work was reviewed in an earlier number of this journal and therefore will not be discussed in great detail on this occasion. Krabbe's study is a protest against the absolutist theory of sovereignty, and a constructive attempt paralleling those of Preuss and Duguit to provide a substitute theory. The substance of his doctrine is that the basis of the modern state must be sought in the sense of right (Rechtsgefühl). The process of modern political development is essentially the substitution of a spiritual power for personal authority. The spiritual nature is the source from which spring real forces and "these forces rule in the strictest sense of the term There is only one source of law-the feeling or sense of right which resides in a man and has a place in his conscious life." Both state and law are the creatures of this "Rechtsgefühl" which may be regarded as the adequate substitute for sovereignty and the ultimate basis of political obligation.

The translation is happily done and its makers deserve special praise for avoiding the atrocities often unwittingly committed by linguists who are innocent of the vocabulary or concepts of jurisprudence, politics and philosophy. The industrious translators have somewhat less happily prefixed an extended introduction to Professor Krabbe's work. In the main this is a running interpretation of the author's work, but it is difficult at times to know whether the preface is intended as a free interpretation of Krabbe or as the independent views of Sabin and Shepard. It is an admirable preface but altogether out of proportion to the length of the body of the book and would have been better placed as an independent treatise. Students of political theory will hope that Professors Shepard and Sabine, jointly or severally, may in the near future develop their interesting views on political theory much more fully on the basis of the hopeful beginning here made.

-The American Political Science Review [1922]

Product Details

ISBN-13: 9789401503952
Publisher: Springer Netherlands
Publication date: 01/01/1922
Edition description: 1921
Pages: 281
Product dimensions: 6.10(w) x 9.25(h) x 0.03(d)

Table of Contents

The Modern Idea of the State.- I The Authority of the State and the Authority of Law.- I. The Opposition between the Old and the New Idea of the State.- II. The Rise of the Modern Idea of the State.- III. The Significance of the Modern Idea of the State.- II The Authority of the Sovereign and the Authority of the Law in History.- I. The State Originally a Community founded on Law.- II. The Rise of the Authority of the Sovereign.- III. Ancient Political Theory as a Theory of the Legal Order of the Community.- IV. The Political Theory of the Middle Ages as a Theory of Sovereignty.- V. The Meaning of the Contract with the Sovereign and of the Social Contract under Absolutism.- VI. The Relation between the Sovereign Authority and the Organization of the Community in Grotius and Others.- VII. Political Theory as Exclusively a Theory of the Sovereign Authority.- VIII. The Relation between Sovereign Authority and the Organization of the Community in England.- IX. The German Philosophy of the State under the Ancien Régime.- X. Montesquieu’s Separation of Powers: A Product of Political Theory as a Theory of Sovereign Authority.- XI. The Theory of State Sovereignty in the Eighteenth Century.- XII. Rousseau’s Popular Sovereignty.- XIII. The Rise of the Modern Idea of the State under the Constitutional System.- XIV. The Supplanting of the Authority of the Sovereign by the Authority of the Law.- III The Basis of the Binding Force of Law.- I. The Concept of the Sovereignty of Law.- II. The Authority of Law as the Rulership of Will.- III. Criticism of the Rulership of Will.- IV. The Conditions for the Validity of Law.- V. The Basis of Legal Rules.- VI. Objections to the Theory.- A. The Normative Character of the Sense of Right.- B. The Authority of the Sovereign as the Authority of Law.- C. The Stability of Law.- D. Force and Law.- VII. Law as the Rule of a Community.- VIII. Majority Rule.- IX. Criticism of Objections to the Majority Principle.- X. The Individual Sense of Right.- XI. The Quality of the Sense of Right.- XII. The Making of Statutory Law.- XIII. Legislation as the Operation of an Organized Sense of Right.- XIV. Unwritten Law.- A. Content.- B. Necessity.- C. Supplementary.- D. Abrogating and Modifying.- E. Statute and Law.- XV. Strengthening the Authority of Law.- A. The Administration with reference to Punishments and Judicial Executions.- B. The Further Task of Administration.- IV The Making of Law.- I. Law-making as an Intellectual Process.- II. The Influence of Codification.- III. The Revolution in Criminal Law.- IV. The Revolution in Private Law.- V. The Influence upon Judicial Decisions.- VI. The Idea of Sovereignty and Constitutional Law.- VII. The Idea of Sovereignty in Administrative Law.- VIII. The Hybrid Character of the Systems of Constitutional and Administrative Law.- IX. The Logical Consequences of the Old and New Political Theories.- A. The Binding Force of Law.- B. The Monopoly of Law.- C. The Continuance of Validity.- D. The Interpretation of Statutory Law.- E. Judicial Decisions.- V Interests and the Sense of Right.- I. Knowledge of Interests and Impartiality.- II. The Platonic Ideal.- III. Monarchy.- IV. The Intellect.- V. The Balance of Interests.- VI. The Solution of the Conflict.- VI Decentralization of Law-Making.- I. Decentralization Based upon Community of Interest.- II. Transforming Organized Interests into Legal Communities.- III. The Lack of Legislative Organs.- VII The Sources of Law.- VIII The Development of Law.- I. The Historical Process.- II. Intellectualism.- III. The Emotional Life.- IX The State.- I. The Old Theory of the State.- II. Criticism.- III. The Modern Theory of the State.- IV. The State as a Community of Interests.- V. Origin of the State as a Community of Interests.- VI. Origin of the State as a Legal Community.- VII. The Organization of the Community of Interests.- X The International Legal Community.- I. The Authority of International Law.- A. The Derivation of its Authority from the Authority of the State.- B. Criticism.- II. The Content of International Law.- A. The Significance of International Law for the State as a Legal Community.- B. The Subjects of International Law.- C. The Connection between National and International Law.- III. The Creation of International Law.- A. Organs.- B. Customary Law.- C. Treaty-Law.- D. Contractual and Declaratory Treaties.- E. Legislation.- F. The Internal Transformation of International Law.- G. The Rise of a World State.

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