If applied without check, it would grant exceptional powers in the same way as article 14 of the [French] Charter of , which made the monarch sovereign. If the individual states no longer have the power to declare the exception, as the prevailing opinion on article 48 contends, then they no longer enjoy the status of states. Article 12 Definition of Sovereignty 48 is the actual reference point for answering the question whether the individual German states are states.
If measures undertaken in an exception could be circumscribed by mutual control, by imposing a time limit, or finally, as in the liberal constitutional procedure governing a state of siege, by enumerating extraordinary powers, the question of sovereignty would then be considered less significant but would certainly not be eliminated.
A jurisprudence concerned with ordinary day-today questions has practically no interest in the concept of sovereignty. Only the recognizable is its normal concern; everything else is a "disturbance. What characterizes an exception is principally unlimited authority, which means the suspension of the entire existing order. In such a situation it is dear that the state remains, whereas law recedes.
Because the exception is different from anarchy and chaos, order in the juristic sense still prevails even if it is not of the ordinary kind. The existence of the state is undoubted proof of its superiority over the validity of the legal norm. The decision frees itself from all normative ties and becomes in the true sense absolute. The state suspends the law in the exception on the basis of its right of self-preservation, as one would say.
The two elements of the concept legal order are then dissolved into independent notions and thereby testifY to their conceptual independence. Unlike the normal situation, when the autonomous moment of the decision recedes to a minimum, the norm is destroyed in the exception.
The exception remains, nevertheless, accessible to jurisprudence 13 Definition of Sovereignty because both elements, the norm as well as the decision, remain within the framework of the juristic. It would be a distortion of the schematic disjunction between sociology and jurisprudence if one were to say that the exception has no juristic significance and is therefore "sociology. The exception appears in its absolute form when a situation in which legal prescriptions can be valid must first be brought about.
Every general norm demands a normal, everyday frame of life to which it can be factually applied and which is subjected to its regulations. The norm requires a homogeneous medium. This effective normal situation is not a mere "superficial presupposition" that a jurist can ignore; that situation belongs precisely to its immanent validity.
There exists no norm that is applicable to chaos. For a legal order to make sense, a normal situation must exist, and he is sovereign who definitely decides whether this normal situation actually exists.
All law is "situational law. He has the monopoly over this last decision. Therein resides the essence of the state's sovereignty, which must be juristically defined correctly, not as the monopoly to coerce or to rule, but as the monopoly to decide.
The exception reveals most dearly the essence of the state's authority. The decision parts here from the legal norm, and to formulate it paradoxically authority proves that to produce law it need not be based on law.
The exception was something incommensurable to John Locke's doctrine of the constitutional state and the rationalist 14 Definition of Sovereignty eighteenth century.
The vivid awareness of the meaning of the exception that was reflected in the doctrine of natural law of the seventeenth century was soon lost in the eighteenth century, when a relatively lasting order was established.
Emergency law was no law at all for Kant. The contemporary theory of the state reveals the interesting spectacle of the two tendencies facing one another, the rationalist tendency, which ignores the emergency, and the natural law tendency, which is interested in the emergency and emanates from an essentially different set of ideas. That a neo-Kantian like Kelsen does not know what to do with the exception is obvious. But it should be of interest to the rationalist that the legal system itself can anticipate the exception and can "suspend itself.
But how the systematic unity and order can suspend itself in a concrete case is difficult to construe, and yet it remains a juristic problem as long as the exception is distinguishable from a juristic chaos, from any kind of anarchy. The tendency of liberal constitutionalism to regulate the exception as precisely as possible means, after all, the attempt to spell out in detail the case in which law suspends itself From where does the law obtain this force, and how is it logically possible that a norm is valid except for one concrete case that it cannot factually determine in any definitive manner?
It would be consequent rationalism to say that the exception proves nothing and that only the normal can be the object of scientific interest. The exception confounds the unity and order of the rationalist scheme. One encounters not infrequently a similar argument in the positive theory of the state. To the question of how to proceed in the absence of a budget law, Gerhard 15 Definition of Sovereignty Anschutz replied that this was not at all a legal question.
Here is where public law stopS. The exception can be more important to it than the rule, not because of a romantic irony for the paradox, but because the seriousness of an insight goes deeper than the clear generalizations inferred from what ordinarily repeats itselE The exception is more interesting than the rule. The rule proves nothing; the exception proves everything: It confirms not only the rule but also its existence, which derives only from the exception.
In the exception the power of real life breaks through the crust of a mechanism that has become torpid by repetition. A Protestant theologian 6 who demonstrated the vital intensity possible in theological reflection in the nineteenth century stated: "The exception explains the general and itself. And if one wants to study the general correctly, one only needs to look around for a true exception.
It reveals everything more clearly than does the general. Endless talk about the general becomes boring; there are exceptions. If they cannot be explained, then the general also cannot be explained.
The difficulty is usually not noticed because the general is not thought about with passion but with a comfortable superficiality. The exception, on the other hand, thinks the general with intense passion. Anschutz Munich and Leipzig, , p. J The reference here is to Sflren Kierkegaard. J The quote is from Kierkegaard's Repetition. Traditional notions are modified to serve an immediate purpose. New realities can bring about a new sociological interest and a reaction against the "formalistic" method of treating problems of public law.
But it is also possible for an effort to emerge that separates juristic treatment from changes in political conditions and achieves scientific objectivity precisely by a firm formal method of treatment.
It is thus possible that this kind of political situation might produce various scientific tendencies and currents. Of all juristic concepts the concept of sovereignty is the one most governed by actual interests. According to convention, the history of this concept begins with Bodin. But one cannot say that it has developed logically since the sixteenth century. The phases of its conceptual development are characterized by various political power struggles, not by a dialectical heightening inherent 17 The Problem of Sovereignty in the characteristics of the concept.
Bodin's concept of sovereignty was derived in the sixteenth century from the final dissolution of Europe into national states and from the struggle of the absolute rulers with the estates. The self-consciousness of the newly created states was reflected in the eighteenth century in Vattel's concept of sovereignty, which was formulated within the context of international law.
In the newly founded German Reich it became necessary after to advance a principle for distinguishing the authority of member states from the federal state.
On the basis of this principle, the German theory of the state distinguishes between the concept of sovereignty and the concept of the state. What is gained by this distinction is that individual states may retain their status as states without being endowed with sovereignty. Nevertheless, the old definition, in phraseological variations, is always repeated: Sovereignty is the highest, legally independent, underived power.
Such a definition can be applied to the most different politicalsociological configurations and can be enlisted to serve the most varied political interests. It is not the adequate expression of a reality but a formula, a sign, a signal. It is infinitely pliable, and therefore in practice, depending on the situation, either extremely useful or completely useless. It utilizes the superlative, "the highest power," to characterize a true quantity, even though from the standpoint of reality, which is governed by the law of causality, no single factor can be picked out and accorded such a superlative.
In political reality there is no irresistible highest or greatest power that operates according to the certainty of natural law. Power proves nothing in law for the banal reason that Jean-Jacques Rousseau, in agreement with the spirit of his time, formulated as follows: Force is a physical power; the pistol that the robber 18 The Problem of Sovereignty holds is also a symbol of power.
All the difficulties reside here. What is necessary is a definition that embraces this basic concept of jurisprudence. Such a definition cannot consist of general tautological predicates but rather must specify the essential juristic elements.
The most detailed treatment of the concept of sovereignty available in the past few years attempts a simple solution. Kelsen followed this path in his Das Problem der Souveranitat und die Theorie des Vo1kerrechts 2 and Der soziologische und der juristische Staatsbegrifp To obtain in unadulterated purity a system of ascriptions to norms and a last uniform basic norm, all sociological elements have been left out of the juristic concept.
The old contrast between is and ought, between causal and normative considerations, has been transferred to the contrast of sociology and jurisprudence, with greater emphasis and rigor than had already been done by GeorgJellinek and Kistiakowski, but with the same unproved certainty. The application of disjunctions emanating from another discipline or from epistemology appears to be the fate of jurisprudence.
Using this procedure, Kelsen arrived at the unsurprising result that from the perspective of jurisprudence the state must be purely juristic, something normatively valid. It is not just any reality or any imagined entity alongside and outside the legal order. The state I. Du contrat social, Bk. I, chap. Tiibingen, That the problem resides precisely in this conception does not appear to create any difficulties.
The state is thus neither the creator nor the source of the legal order. According to Kelsen, all perceptions to the contrary are personifications and hypostatizations, duplications of the uniform and identical legal order in different subjects. The state, meaning the legal order, is a system of ascriptions to a last point of ascription and to a last basic norm.
The hierarchical order that is legally valid in the state rests on the premise that authorizations and competences emanate from the uniform central point to the lowest point. The highest competence cannot be traceable to a person or to a sociopsychological power complex but only to the sovereign order in the unity of the system of norms.
For juristic consideration there are neither real nor fictitious persons, only points of ascription. The state is the terminal point of ascription, the point at which the ascriptions, which constitute the essence of juristic consideration, "can stop. The decisive argument, the one that is repeated and advanced against every intellectual opponent, remains the same: The basis for the validity of a norm can only be a norm; in juristic terms the state is therefore identical with its constitution, with the uniform basic norm.
The catchword of this deduction is unity. But the unity of the legal order, mean- 20 The Problem of Sovereignty ing the state, remains "purged" of everything sociological in the framework of the juristic. Is this juristic unity of the same kind as the worldwide unity of the entire system?
How can it be possible to trace a host of positive attributes to a unity with the same point of ascription when what is meant is not the unity of a system of natural law or of a general theory of the law but the unity of a positive-valid order? Words such as order, system, and unity are only circumscriptions of the same postulate, which must demonstrate how it can be fulfilled in its purity. It has to be shown how a system can arise on the foundation of a "constitution" which is either a further tautological circumscription of the "unity" or a brutal sociopolitical reality.
The systematic unity is, according to Kelsen, an "independent act of juristic perception. As if speaking time and again of uninterrupted unity and order would make them the most obvious things in the world; as if a fixed harmony existed between the result of free juristic knowledge and the complex that only in political reality constitutes a unity, what is discussed is a gradation of higher and lower orders supposedly found in everything that is attached to jurisprudence in the form of positive regulations.
The normative science to which Kelsen sought to elevate jurisprudence in all purity cannot be normative in the sense that the jurist by his own free will makes value assessments; he can 21 The Problem of Sovereignty only draw on the given positively given values. Objectivity thus appears to be possible, but has no necessary connection with positivity Po. Although the values on which the jurist draws are given to him, he confronts them with relativistic superiority.
He can construct a unity from everything in which he is interested juristically, provided he remains "pure. One who does not take any chances and remains resolutely methodological, not illustrating with even one concrete example how his jurisprudence differs from that which has been practiced until now as jurisprudence, finds it easy to be critical.
Methodological conjuring, conceptual sharpening, and astute criticizing are only useful as preparatory work. If they do not come to the point when arguing that jurisprudence is something formal, they remain, despite all effort, in the antechamber of jurisprudence. Kelsen solved the problem of the concept of sovereignty by negating it.
The result of his deduction is that "the concept of sovereignty must be radically repressed. This conception has received a significant exposition by Hugo Krabbe. His theory of the sovereignty of laws rests on the thesis that it is not the state but law that is sovereign. Dos Problem der Souveranitat, p. His work on this subject was originally published in ; the enlarged edition appeared in under the title Die modeme Staatsidee.
George H. Sabine and Walter J. Shepard New York and London, In fact, Krabbe's theory does share a common ideological root with Kelsen's result, but precisely where Kelsen was original, in his methodology, there is no connection between the exposition of the Dutch legal scholar and the epistemological and methodological distinctions of the German neo-Kantian.
This is the essence of the modern idea of the state. Precisely because these forces emanate from the spiritual nature of man, they can be obeyed voluntarily. The distinction between public and private law is radically denied, insofar as it rests on a difference in the reality of subjects. Die modeme Staatsidee, 2d ed. Haag, , p. It is not the state but law that is supposed to have power.
What must be pointed out simultaneously is that the state reveals itself only in the making of law, be it by way of legislative enactment or by way of rewriting law.
The state does not manifest itself in applying laws or in maintaining any sort of public interest whatever. But this does not mean that it produces the content oflaw. It does nothing but ascertain the legal value of interests as it springs from the people's feeling or sense of right. Therein resides a double limitation: first, a limitation on law, in contrast with interest or welfare, in short, with what is known in Kantian jurisprudence as "matter"; second, a limitation on the declaratory but by no means constitutive act of ascertaining.
I will show that the problem of law as a substantial form lies precisely in this act of ascertaining. It must be observed that for Krabbe the contrast between law and 9. When he asserted that all public interests are subject to law, he meant that the legal interest is the highest in the modern state, the legal value the highest value. Antagonism toward the centralized authoritarian state brought Krabbe dose to the association theory. His fight against the authoritarian state is reminiscent of the well-known writings of Hugo Preuss.
Otto von Gierke, the founder of association theory, formulated his notion of the state as follows: "The will of the state or the sovereign is not the final source of law but is the organ of the people convoked to express legal consciousness as it emerges from the life of the people.
Yet law and state were for Gierke "equal powers," and he answered the basic question on their mutual relation by asserting that both are independent factors of human communal life, but one cannot be conceived of without the other, and neither exists before or through the other.
In the instance of revolutionary constitutional changes there is a legal breach, a breach in legal continuity that can be ethically required or historically justified; but it remains a legal breach. As such, it can be repaired and can subsequently receive a legal justification "through some sort oflegal procedure that will satisfy the legal consciousness of the people," for example, a constitutional agreement or a plebiscite or the sanctifying power of tradition.
The quote is from part I and the page is The equality of the state with the law is nevertheless veiled in Gierke because, according to him, the state's lawgiving is only "the last formal seal" the state stamps on the law; it is an "imprint of the state" that has only "external formal value.
This is why, according to Gierke, international law can be law even though it lacks state character. If the state is pushed into playing the role of a mere proclaiming herald, then it can no longer be sovereign. On the basis of Gierke's association theory, Preuss rejected the concept of sovereignty as a residue of the authoritarian state and discovered the community, based on associations and constituted from below, as an organization that did not need a monopoly on power and could thus also manage without sovereignty.
Among the newer representatives of association theory is Kurt Wolzendorff, who has tried to use the theory to solve "the problem of a new epoch of state. What is demanded of this power is that it intervene only when the free individual or associational act proves to be insufficient; it should remain in the background as the ultima ratio. What is subject to order must not be coupled with economic, social, or cultural interests; these must be left to That a certain "maturity" belongs to selfgovernment could, incidentally, make Wolzendorffs postulates dangerous, because in historical reality such historical-pedagogic problems often take an unexpected tum from discussion to dictatorship.
Wolzendorffs pure state confines itself to maintaining order. To this state also belongs the formation of law, because all law is simultaneously a problem of the existence of the state order. The state should preserve law; it is "guardian, not master," guardian, not a mere "blind servant," and "responsible and ultimate guarantor.
I don't believe that Wolzendorff was aware of how close he came with his "ultimate guarantor" to the authoritarian theory of the state, which is so completely antithetical to the associational and democratic conception of the state. This is why his last work, compared with those of Krabbe and other representatives of the association theory mentioned, is particularly important. It focuses the discussion on the decisive concept, namely, that of the form in its substantive sense. The authority of the order is valued so highly, and the function of guarantor is of such independence, that the state is no longer only the ascertainer or the "externally formal" transformer of the idea of law.
The problem that arises is to what extent, with legal-logical necessity, every ascertainment and decision contains a constitutive element, an intrinsic value of form. Wolzendorff speaks of form as a "sociopsychological phenomenon," an active factor in historical-political life, the significance of which consists in giving opposing political forces an opportunity to grasp, in the conceptual structure of a state's 27 The Problem of Sovereignty constitution, a firm element of calculation.
Wolzendorff did not distinguish clearly between a form that serves the purpose of calculable functioning and a form in the aesthetic sense, as the word is used, for example, by Hermann Hefele. The confusion spreading in philosophy around the concept of form is repeated with especially disastrous results in sociology and jurisprudence.
Legal form, technical form, aesthetic form, and finally the concept of form in transcendental philosophy denote essentially different things.
It is possible to distinguish three concepts of form in Max Weber's sociology oflaw. In one instance, the conceptual specification of the legal content whose legal form, the normative regulation, is as he says, but only as the "causal component of consensual acting.
He thus says that a formally developed law is a complex of conscious maxims of decisions, and what belongs to it sociologically is the participation of trained lawyers, representatives of the judiciary with civil service status, and others.
Professional training, which means rational training, becomes necessary with the increased need for specialized knowledge. From this is derived the modem rationalization of law toward the specifically juristic and the development of "formal qualities. Rechtssoziologie, II, J. Max Rheinstein Cambridge, MA, Because of its evenness and calculability, regularity passes over to the third form, the "rationalistic," that is, technical refinement, which, emerging from either the needs of specialized knowledge or the interests of a juristically educated bureaucracy, is oriented toward calculability and governed by the ideal of frictionless functioning.
We need not be detained here by the neo-Kantian conception of form. With regard to technical form, it means a specification governed by utility. Although it can be applied to the organized state apparatus, it does not touch the "judicial form. That it can be aesthetically valued, perhaps even be made to lend itself to ceremonies, does not alter its technicity Technizilat. The age-old Aristotelian opposites of deliberation and action begin with two distinct forms; whereas deliberation is approachable through legal form, action is approachable only by a technical formation.
The legal form is governed by the legal idea and by the necessity of applying a legal thought to a factual situation, which means that it is governed by the self-evolving law in the widest sense. Because the legal idea cannot realize itself, it needs a particular organization and form before it can be translated into reality. That holds true for the formation of a general legal norm into a positive law as well as for the application of a positive general legal norm by the judiciary or administration.
A discussion of the peculiarity of the legal form must begin with this. What significance can be given to the fact that in the contemporary theory of the state, neo-Kantian formalism has been 29 The Problem of Sovereignty thrown aside while, at the same time, a form is postulated from an entirely different direction?
Is that another expression of those eternal mix-ups that are responsible for making the history of philosophy so monotonous? One thing is certain to be recognized in this modem theory of the state: The form should be transferred from the subjective to the objective.
The concept of form in Emil Lask's theory of categories is still subjective, as it must necessarily be in every epistemologically critical approach. Kelsen contradicted himself when, on the one hand, he took such a critically derived subjectivist concept of form as the starting point and also conceived the unity of the legal order as an independent act of juristic perception, but then, on the other hand, when he professed his world view, demanded objectivity, and accused even Hegelian collectivism of a subjectivism of the state.
The objectivity that he claimed for himself amounted to no more than avoiding everything personalistic and tracing the legal order back to the impersonal validity of an impersonal norm. The multifarious theories of the concept of sovereignty-those of Krabbe, Preuss, Kelsen-demand such an objectivity. They agree that all personal elements must be eliminated from the concept of the state.
For them, the personal and the command elements belong together. According to Kelsen, the conception of the personal right to command is the intrinsic error in the theory of state sovereignty; because the theory is premised on the subjectivism of command rather than on the objectively valid norm, he characterized the theory of the primacy of the state's legal order as "subjectivistic" and as a negation of the legal idea.
In Krabbe the contrast between personal and impersonal was linked with the contrast between concrete and abstract, individual and general, which can be extended to the contrast between 30 The Problem of Sovereignty authority and legal prescription, authority and quality, and in its general philosophical formulation to the contrast between person and idea.
Confronting in this fashion personal command with the impersonal validity of an abstract norm accords with the liberal constitutional tradition of the nineteenth century, which was lucidly and interestingly explained by Ahrens. For Preuss and Krabbe all conceptions of personality were aftereffects of absolute monarchy.
All these objections fail to recognize that the conception of personality and its connection with formal authority arose from a specific juristic interest, namely, an especially dear awareness of what the essence of the legal decision entails. Such a decision in the broadest sense belongs to every legal perception.
Every legal thought brings a legal idea, which in its purity can never become reality, into another aggregate condition and adds an element that cannot be derived either from the content of the legal idea or from the content of a general positive legal norm that is to be applied. Every concrete juristic decision contains a moment of indifference from the perspective of content, because the juristic deduction is not traceable in the last detail to its premises and because the circumstance that requires a decision remains an independently determining moment.
This has nothing to do with the causal and psychological origins of such a decision, even though the abstract decision as such is also of significance, but with the determination of the legal value. The certainty of the decision is, from the perspective of sociology, of particular interest in an age of intense commercial activity because in numerous cases commerce is less concerned with a particular content than with a calculable certainty.
So that I can accommodate myself accordingly, I am often less interested in how a timetable 31 The Problem of Sovereignty determines times of departure and arrival in a particular case than in its functioning reliably.
Legal communication offers an example of such a concern in the so-called formal strictness of the exchange law. The legal interest in the decision as such should not be mixed up with this kind of calculability. It is rooted in the character of the normative and is derived from the necessity of judging a concrete fact concretely even though what is given as a standard for the judgment is only a legal principle in its general universality.
Thus a transformation takes place every time. That the legal idea cannot translate itself independently is evident from the fact that it says nothing about who should apply it. In every transformation there is present an auctoritatis interpositio.
A distinctive determination of which individual person or which concrete body can assume such an authority cannot be derived from the mere legal quality of a maxim. This is the difficulty that Krabbe ignored. That it is the instance of competence that renders a decision makes the decision relative, and in certain circumstances absolute and independent of the correctness of its content. This terminates any further discussion about whether there may still be some doubt.
The decision becomes instantly independent of argumentative substantiation and receives an autonomous value. The entire theoretical and practical meaning of this is revealed in the theory of the faulty act of state. A legal validity is attributed to a wrong and faulty decision.
The wrong decision contains a constitutive element precisely because of its falseness. But what is inherent in the idea of the decision is that there can never be absolutely declaratory decisions. That constitutive, specific element of a decision is, from the perspective of the content of the underlying norm, new and alien.
Looked at normatively, the 32 The Problem of Sovereignty decision emanates from nothingness. The legal force of a decision is different from the result of substantiation. Ascription is not achieved with the aid of a norm; it happens the other way around.
A point of ascription first determines what a norm is and what normative rightness is. A point of ascription cannot be derived from a norm, only a quality of a content. The formal in the specifically legal sense contrasts with this quality of content, not with the quantitative content of a causal connection. It should be understood that this last contrast is of no consequence to jurisprudence. The peculiarity of the legal form must be recognized in its pure juristic nature.
One should not speculate here about the philosophical meaning of the legal validity of a decision or about the motionlessness or the "eternity" of law, of law untouched by time and space, as did Adolf Merkl. I8 When Merkl said that "a development of the legal form is impossible because it dissolves the identity," he disclosed that he basically adheres to a roughly quantitative conception of form.
But from this kind of form it is inexplicable how a personalistic element can appear in the doctrine of law and the state. This notion accords with the old constitutional tradition and its starting point that only a general legal prescription can be authoritative.
The law gives authority, said Locke, and he consciously used the word law antithetically to commissio, which means the personal command of the monarch. But he did not recognize that the law does not designate to whom it gives authority. It cannot be just anybody who can execute and realize every desired legal prescription. The legal prescription, as the norm of decision, only designates how decisions should It appears to me that what he had in mind was Adolf MerkJ's "Die Rechtseinheit des osterreichischen Staates," Archiv des iiffentlichen Rechts 37 , esp.
In the absence of a pivotal authority, anybody can refer to the correctness of the content. But the pivotal authority is not derived from the norm of decision.
Accordingly, the question is that of competence, a question that cannot be raised by and much less answered from the content of the legal quality of a maxim. To answer questions of competence by referring to the material is to assume that one's audience is a fool. We can perhaps distinguish two types of juristic scientific thought according to whether an awareness of the normative character of the legal decision is or is not present. The classical representative of the decisionist type if I may be permitted to coin this word is Thomas Hobbes.
The peculiar nature of this type explains why it, and not the other type, discovered the classic formulation of the antithesis: autoritas, non veritas facit legem. Hobbes also advanced a decisive argument that connected this type of decisionism with personalism and rejected all attempts to substitute an abstractly valid order for a concrete sovereignty of the state. He discussed the demand that state power be subordinate to spiritual power because the latter is of a higher order.
To this reasoning he replied that if one "power" potestas were to be subordinate to another, the meaning would be nothing more than that the one who possesses power is subordinate to the other who possesses power: "He which hath the one Power is subject to him that hath the other. Leviathan, chap. It is striking that one of the most consequential representatives of this abstract scientific orientation of the seventeenth century became so personalistic. This is because as a juristic thinker he wanted to grasp the reality of societal life just as much as he, as a philosopher and natural scientist, wanted to grasp the reality of nature.
He did not discover that there is a juristic reality and life that need not be reality in the sense of the natural sciences. Mathematical relativism and nominalism also operate concurrently. Often he seemed to be able to construct the unity of the state from any arbitrary given point.
But juristic thought in those days had not yet become so overpowered by the natural sciences that he, in the intensity of his scientific approach, should unsuspectingly have overlooked the specific reality of legal life inherent in the legal form. The form that he sought lies in the concrete decision, one that emanates from a particular authority.
In the independent meaning of the decision, the subject of the decision has an independent meaning, apart from the question of content. What matters for the reality oflegallife is who decides. Alongside the question of substantive correctness stands the question of competence. In the contrast between the subject and It does not have the a priori emptiness of the transcendental form because it arises precisely from the juristically concrete. The juristic form is also not the form of technical precision because the latter has a goal-oriented interest that is essentially material and impersonal.
Finally, it is also not the form of aesthetic production, because the latter knows no decision. The exception in jurisprudence is analogous to the miracle in theology. Only by being aware of this analogy can we appreciate the manner in which the philosophical ideas of the state developed in the last centuries. The idea of the modern constitutional state triumphed together with deism, a theology and metaphysics that banished the miracle from the world. This theology and metaphysics rejected not only the transgression of the laws of nature through an exception brought about by direct intervention, as is found in the idea of a miracle, but also the sovereign's direct intervention in a valid 38 Political Theology a natural theology and a natural jurisprudence and scripture, which means a book with positive revelations and directives.
Adolf Menzel noted in an essay3 that today sociology has assumed functions that were exercised in the seventeenth and eighteenth centuries by natural law, namely, to utter demands for justice and to enunciate philosophical-historical constructions or ideals. He seems to believe that sociology is inferior to jurisprudence, which is supposed to have become positive.
He attempts to show that all heretofore sociological systems end up by making "political tendencies appear scientific. At times it does so as a deus ex machina, to decide according to positive statute a controversy that the independent act of juristic perception failed to bring to a generally plausible solution; at other times it does so as the graceful and merciful lord who proves by pardons and amnesties his supremacy over his own laws.
There always exists the same inexplicable identity: lawgiver, executive power, police, pardoner, welfare institution. Thus to an observer who takes the trouble to look at the total picture of contemporary jurisprudence, there appears a huge cloak-and-dagger drama, in which the state acts in many disguises but always as the same invisible person.
The "omnipotence" of the modem lawgiver, of which one reads in every textbook on public law, is not only linguistically derived from theology. Many reminiscences of theology also appear in the details of the argumentation, most of course with polemical intent. In a positivistic age it is easy to reproach an intellectual opponent 3. Naturrecht und Soziologie Vienna and Leipzig, If the reproach were intended as more than mere insult, at least the following question could suggest itself: What is the source of this inclination for such theological and metaphysical derailments?
One would have had to investigate whether they may be explained historically, perhaps as an aftereffect of monarchical public law, which identified the theistic God with the king, or whether they are underpinned by systematic or methodical necessities. I readily admit that because of an inability to master intellectually contradictory arguments or objections, some jurists introduce the state in their works by a mental short circuit, just as certain metaphysicians misuse the name of God.
But this does not yet resolve the substantive problem. Until now one was generally satisfied with casual intimations only. In his publication on the law in the formal and material sense, Albert Hanel 4 raised the old objection that it is "metaphysics" to demand, for the sake of the uniformity and reliability of the state's will both of which he thus does not deny , the concentration of all functions of the state in one organ.
Hugo Preuss 5 too attempted to defend his association concept of the state by relegating his opponents to theology and metaphysics. The concept of sovereignty in the theory of the state by Lab and and J ellinek and the theory of the "sole supremacy of the state" make the state an abstract person so to speak, a unicum sui generis, with a monopoly of power "mystically produced.
Thus 4. He employed political theology to argue for the continued legitimacy of the absolute sovereignty of the state against the claims raised by pluralist and globalized civil society. In so doing, the political representation of God in the world was no longer placed in the hands of hierarchical and sovereign lieutenants Church, Empire, Nation , but in a series of democratic institutions, practices and conceptions like direct representation, constitutionalism, universal human rights, and public reason that reject the primacy of sovereignty.
Keywords: Christianity , political theology , democracy , people , representation , legitimacy , constitutionalism , Gnosticism. Forgot password? Don't have an account? All Rights Reserved. OSO version 0.
University Press Scholarship Online. Sign in. In doing so, we see a was formed in p. After independence in , the spiritualised political theology. The church continued to expand and set up who were persecuting the Zimbabwean citizen, Apostle Guti branches in all the provinces of the country.
Perhaps as a called his members to pray. In , Apostle Guti, through his writings, letters in order for him to be able to reach out for his churches encouraged his church members to thank God who had in all provinces.
Whilst the letters are referred to as the Ten- heard them. This political theology sees the destruction of his tents and is so because in the interviews one senior Pastor of this persecution of citizens during the war times as the works of Church whose name remained anonymous argued that upon the devil, not the government officials of that time. President the gospel that delivers people from alcohol and sexual Mugabe who did not want any other political party except immorality, for example, so that when people die, they go to his ZANU deployed soldiers to go and kill the Ndebele heaven.
I argue that from the destruction of his church To achieve his ambition of having a one-party state, Mugabe tents to the killing of people during Operation Gukurahundi, deployed his soldiers to Matabeleland under the pretext of Apostle Guti continued to encourage his members to live a eradicating dissidence, although his ulterior motive was to holy life in order to qualify for eternal life. However, extinguish ZAPU. Thus, in the government deployed Togarasei argued that African Pentecostal churches must the Fifth Brigade to Matabeleland.
Instead, Apostle Guti wrote to his church again in this country, but in America, they are still saying that members: the Church will be caught before tribulations, but in Africa, we no longer say that, why?
Our people were hung in trees and burnt alive. Church members must be holy and steadfast without being Others were forced to kill their parents.
Some of the tribulations moved by what is happening. Pray that Christians become ready we read in the Bible have seen them in Africa. Again, it was during this second phase that Apostle Guti shifted his focus from just preaching alone without Encouraging members to be steadfast without being moved being involved in public affairs: by what was happening is, therefore, described in this article Preaching alone without involvement in the development of the as the propagation of a spiritualised political theology.
For nation, it can only help spiritually, but people are living in him, the Church has nothing to do with politics. Thus, it is poverty. That is why the politicians are not worried about the the view of this author that spiritualised political theology indigenous churches … The problem of indigenous churches is resulted in Pentecostal churches of that time to not address that they lack influential power to influence nations. Therefore, the root causes of political problems.
For this reason, Maxwell indigenous churches should look at life in a much broader describes the silence towards political violence by horizon than to only think of future blessings … preaching alone the African Pentecostal movement as a sign of sectarian without participating in the development of a nation can only tendencies. Sectarianism as the term was used to describe help spiritually, while people live in poverty without financial movements that see themselves as aliens to this world and resources to spread the gospel.
That is why politicians are not have nothing to do with the world Hallencreutz Perrance Shiri by the time of his death was the Agriculture Minister of Zimbabwe. He died at the age of Accordingly, this first Biri The venue itself was an indication involved in many scandals, during which time, the corrupt of a mutual relationship between the church and ZANU—PF.
The looting of resources by For Maxwell through these reciprocal relations between the government officials escalated. This article argues that saw ZANU—PF again losing the support of older historic Apostle Guti deliberately chose to sacrifice his prophetic mission churches.
Thus, for the second time, the Catholic voice in order to gain favour in the eyes of the King Mugabe Commission for Justice and Peace was the leading organ to and be granted the fulfilment of his petitions land to build protest against corruption and advocating accountability more centres of worship. Maxwell Why do we not have more born again Christians participating in Upon reading these pastoral letters from that period, one the running of the country?
I believe that a good Christian finds that a new paragraph has been inserted: should participate in the running of the government, but how Praying for our President Comrade Robert Gabriel Mugabe and can you do so if you do not attend political meetings?
I say a his government. Besides, the drastic changes, from being apolitical, to being so concerned church had perhaps also learnt that distancing itself from with public affairs and requesting church members to pray national affairs would thwart all opportunities to acquire for President Mugabe and his government?
Why was it so material resources. For there is no authority except from God, and the establishing a modus operandi with a new regime that guarded authorities that exist are appointed by God. The church had grown and could not resists the authority resists the ordinance of God, and those continue to gather in classrooms for church services.
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