Max Weber's Conception of the State Author(s): Karl Dusza Source: International Journal of Politics, Culture, and Society,

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Max Weber's
Karl Dusza

Conception

of the State

There to the effect that is documentary and interpretive evidence a systematic on the state. His to write Weber intended treatise in the summer of 1920 prevented him from realizing sudden death

his plan. Instead of a finished product, he left behind only fragments and occasional writings (Weber 1958a) bearing, directly or indirectly,
on the problem of the state. This article is based on a larger work of in which the author, to reconstruct he has attempted from these the planned of the state. The fragmentary writings sociology in the belief reconstruction has been undertaken to that, contrary conventional upon the "types of legitimate interpretations dwelling Weber's and current political authority," political sociology, reality as well, can only be adequately on the state understood by focusing as a structurally of the specific and historically unique organization over men. rule of men and its Anglo-American of politics in which there is institution such as the political state. The victorious in the behavioral "revolution sciences" rejected the term "state" itself and everything it implied as the remnants of an "outmoded" to politics. approach (Easton, 1953; Truman, 1955; lived on in Marxism, but the class of Eulau, 1963). The term "state" that it denoted was not identified it was used only as objects exactly; a catchword for the designation of the "political superstructure," variants no place political sociology in particular, projects for an all-encompassing in the interpretive of Marxism, is a set of ephemeral which, paradigm are to be found whose "real" phenomena organizing principles in the "economic outside their own domain: that is. substructure," the so-called Recent works neo-Marxists have not gotten farther by to the state a greater than attributing of "autonomy" than degree was Marx and Engels. by proposed 1969; Poulantzas, (Miliband, Modern in general, a picture

1975; Jessop, 1982).

even the Theoretical weakness and conceptual laxity characterize in mainstream studies social science with Marxism, that, tinged want to "bring the state back in." The term is just thrown into "war making," about the patterns of income scholarly pieces in Europe, the American welfare corporatism distribution, system,

International Journal of Politics, Culture, and Society Volume 3, Number 1, Fall 1989

71

1989 Human Sciences Press, Inc.

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Politics, Culture, and Society

are to be and many other topics that, in the intention of the authors, treated from the aspect of their relationship to "the state" (Evans, & Skocpol, that set out Rueschemeyer, 1985). There are even studies a serious to investigate the development of the state, without making

effort at defining the subject the development investigated (Tilly, 1975).

This article has that two goals: to clarify the concept

of which

is to be
as a

of the state

specific organization

of political
modern

rule and thus to highlight

its characteristic writes what

the

he calls the state" But while Professor (1975, pp. 319-320). European a great deal of the "conceptual has Oakeshott cleared muddle" about the state tend to get into, he has not gotten very far in writings a new vocabulary. This article will not only provide this suggesting but it will also show what social relationships emergent vocabulary, have called for it. "modern terms that collective can determine what to them in the empirical world. But he rejects their corresponds in the sensible world thesis that there is no such thing as a "state" of there are only behavior human affairs because there. What patterns a certain of behavior and the consciousness about of the pattern a definite of this pattern, existence hence behavior pattern, having what about this being "the state?" us directly to Max Weber. For Weber This to brings assigned of the fact that every the conscious realization social sociology or political economic entity, be it a class, a status group, a religious, or barter economy, can eventually body, state or empire, capitalism like the author state agrees with are empty words the "behaviorists" one unless as its ontological In Weber's conduct be traced to human substance. such as 'state,' and the 'association,' 'feudalism,' words, "concepts of certain for sociology of like generally indicate kinds categories it is therefore the task of sociology to reduce human action; joint to 'understandable' without these concepts excep? action, meaning individual" tion, the action of the participating (Weber, 1981, p. 158). in his Economy did not stop here. One who searches But Weber for a direct application of his outlined and Society program (1968) must There is little mention in his sub? be deeply disappointed. of action stantive works and communication, of individual actors to the expectation of others. The pages of their behavior orienting status and Society and groups, classes, Economy depict parties in an un? of people each other units other collective confronting ceasing sequence of wars, conquest, subjugation and domination; This

background imparts politics The noted political theorist, Michael Oakeshott, to describe is needed and extensive vocabulary

features. that a new

Karl Dusza

73

the never-ceasing clashes between such groups emerge cities, and their continued existence secured kingdoms empires, by a mixture of brute and and invented usages, force, unquestioned rationalized doctrines. of what his "methodological do the opposite Now, why did Weber seem to suggest. Why would individualism" this discrepancy, noted by some commentators (Andreski, 1964; Mommsen, 1974), between to sociology the program Weber and its actual realization? assigned In fact, there is no discrepancy here. The alleged contrast in Weber between his "action of frame of reference" and the actual practice is not a symptom structural-formal of intellectual schizo? analysis of the very nature of social reality but is a reflection that phrenia, tries to explore. Weber was fully aware that combined action thought of a plurality of individuals in something sui generis, results which From ones. of the one, not even of multiple ever more acts" there emerge of which at one point reaches the complexity structures, complicated a degree where external bond standing they appear as an objective, over against the acting The mode, in which the agents. therefore, of actions constellation is constituted and sustained is more cannot be reduced to the action of the combination "unit

from

than the "unit acts." By virtue of coercion, and important legitimacy are integrated of meaning, actions systems objectified particular into organized collective units. While in the embodied complexes, action of concrete or less these entities exist as more individuals, stable formations amid the transitory individual manifestations. as Weber Hence of structural the possibility it in analysis practiced and Society Economy (Winckelmann, 1966, p. 230).

Institutions The

as the Struggle

for Power

in this paradigm of the concept of the state as an significance structure of political rule is (or should objectified be) obvious. to Weber, are primordial power and struggle According components of social life; they are the very stuff out of which is composed politics (Weber, power nor 1958b, pp. 78, 116; Weber, 1968, p. 55). Neither in its abstract struggle exists, however, essentiality (Freund 1968). in concrete Embodied actions social rise to particular they give in which structures and in the framework power is institutionalized of which is contested. There is thus more to politics than power are institutional for power;" there structures "struggle which, although themselves but the resultants and the mode of organization

74

Politics, Culture, and Society

of

social

action, was social also

give aware,

concrete more

form than

and

direction

to political

struggle. Weber like all

phenomena,

political

a then presupposes in which the struggle be eliminated from social life, has The bulk of Weber's of or, is taking taken, place. sociology to the analysis domination is devoted of these institutions (Roth, of his early 1965). Because 1968; Winckelmann, 1964; Winckelmann, of his work those remained death, however, exactly components live in) context

An adequate changing. understanding ical epoch the one we (including of the specific institutional knowledge for power, a phenomenon that cannot

that anybody else, we believe, are historically institutions of the politics of any histor?

unfinished
modern conceived

that would have

That matrix and

identified the institutional matrix

he called "the specific state," which structurally

of
he

of organization over men. of the state is, therefore, to identify of a sociology The purpose to show how the specific structures these structural traits, developed in the course of people for the of history incessant amid struggles to command and to make clear how a others, conceptually right of political the exercise rule influences of power specific organization as well as the struggle for its appropriation and redistribution. the rule of men

politics. as a historically

Modes There are, of course, as the state

of Conceptualization

in which such a complex several ways can be approached. The German historian phenomenon of the "forms of appearance" the following lists Otto Hintze "modern state" (1962, p. 476): in the framework power-state (a) the sovereign of states; system state based closed commercial (b) The relatively mode (c) the of production; liberal legal-constitutional nation-state. is state with of the European on the capitalist its emphasis on

individual rights and liberties;

(d) the democratic In his central, review Stephen

in which of a handful of recent the state studies four different Krasner discerns conceptualizations

of the state (1984):

Karl Dusza

75

(a) the

state

as

government,

that

is,

as

set and

of

personnel institu?

occupying decisional authority in the polity;

(b) the state tionalized (c) the state (d) the state Weber's as an administrative legal as ruling class; as a normative order; apparatus as an

order.

of the state covers several of the above with any one of them. For Weber approaches, the sovereign tends to be identical with the nation-state, power-state as a liberal is constituted its internal which, regarding structure, conceptualization but it is not identical democratic voluntaristic individual liberties and allowing the securing In the process of conflicting interests. of such interplay secured the personnel of highest institutionally competition is selected. This personnel, decisional the government, has authority an administrative at its disposal that functions apparatus according state

are in in the political of command to set rules. All powers community a norn^a the form of official created and regulated jurisdictions by or less identical tive order. Consequently, the ruling class is more are incumbent who in offices the group of persons in Which with are vested. of command powers a definition is not, however, but only a summary in Weber's of the different that are integrated aspects paraphrase state. The real significance of his approach of the is that conception structural it aims at comprehending traits that cut across "forms of and even substantive domains because appearance" they refer to the are interrelated. in which modes social actions His approach specific and the purely also "historical" in the transcends integrates under investigation. For Weber, the historical phenomena specificity of the state consists in the specificity of its organization. That is to the state historically is not its existence in a say, what makes unique limited period of time, but the specific mode in which rule is political The above organized.

A PreliminaryDefinition At the end of Chapter One of Economy

Weber identifies the state with the following

and Society

(1968, p. 56)

characteristics: use of physical

to the monopoly of the (a) the claim a given force within territory;

legitimate

76

Politics, Culture, and Society

constitution); and order which claim legal binding not only over the members of the state, the citizens, authority over all actions but to a large extent its taking place within area of jurisdiction; to change of this order (e) subjection through "legislation"

of the (b) centralization distribution (c) planned (a rational "organs" (d) an administrative

material and the ideal means of rule; of the powers of command among various

(Satzung);
activities to the enforcement oriented and reali? organized zation of this order (an administrative staff); of the competition for political offices and selection (g) regulation of the bearers to established of rulership rules. according (f) can be expressed, and abstract actually terms; in those "basic in Part One of sociological terms," namely, by which Weber and Society to conceptualize the objectively Economy attempts of social action. The purpose structural forms of complexes possible of increased abstraction is to bring out the pure organizational traits of the state as a specific structure of political rule. a quasi-corporative com? Thus the concept Anstalt, by applying means to the state, Weber to emphasize the pulsory institution, of political of its order (established impersonality rule, the character of the validity of this order (compulsory), the ration? rules), the mode al of the powers of command hence their (jurisdictions), distribution as a system of offices. The term Betrieb refers to the organization as a continuous, exercise of the powers of command persistent These dominant characteristics historically are expressed in more by Weber, of activity to day-to-day needs (Geschaeft) sphere adapted (routin of a bureaucratic It implies, the existence administrative ized). then, the static concept of Anstalt with the dynamic apparatus. Linking or Betriebsanstalt?suggests of Betrieb?Anstaltsbetrieb concept of a plurality that as a state political rule is a continuous of activity set rules, and exercising of command the powers men, by specified not on the basis of personal to their own and according authority norms but on the basis of impersonal established whim, by enact? ment. In other words, of an the capacity to issue individual on others does not have commands its source in his person, binding from a normatively set of impersonal but is derived defined "compe? is depersonalized tences." As a state, political and rule bound. power of power is an office. The exercise office is what (or offices) political To acquire the incumbency of an in the state is about. struggle

Karl Dusza

77

of the state as a set of formal for whom the notion Those, therefore, as they say, "no causal is of no significance arrangements because, of the governmental exists between the structure relationship of power" location and the actual mechanism (Loewenstein, 1957, p. from what was It follows said wrong. 26) are patently analytically that in the modern above and it can also be ascertained empirically state there is a strong correlation between the normatively assigned of power. While of one's will the realization and actual possession of the other, which is Weber's of the resistance definition despite can take place on different and in different ways, power, grounds which works command of power authoritative that kind with or application of physical violence is by the threat supported state to a legitimate linked in the modern office created inseparably order of the political That this by the normative-legal community. of past struggles forces between different order itself is the outcome in the community Once established, of is another matter. the system a life of its own and limits, anchored powers acquires normatively even determines, community the forms (Krasner, and the resolution of conflicts in the political 1984, p. 225; Skocpol, 1985, p. 21).

Historical

Uniqueness

and Structural

Specificity

form of More will be said below how (and how not) the structural as "state" the political constrains and community designated for and the exercise conditions the struggle of political power. Before we get there we have to gain a clearer picture of what the state is than of its chief characteristics. is provided the above outline The term by "state" will here be used without for the reason that, as any qualifier, was said above, what it signifies is a historically and unique of political rule. The past has structurally specific organization a great known of political formations: fortress variety kingdom, citizen polis, bureaucratic aristocratic polis, city monarchy, liturgy bureaucratic sacral king? monarchy, empire, warrior communism, etc. (Weber, 1976a). All these are Staendestaat, ship, urban signoria, historical of political that is to say, institu? organization, of the regulation forms of the interrelation of the or application of a given inhabitants the threat of territory by force (Weber, 1968, p. 901). But none of them is a "state." physical "For our purposes it remains to use the term 'state' in a expedient narrower Weber writes he means is not (1968, p. 1142). What way," tionalized instances

78

Politics, Culture, and Society

just

that

for

appropriate phenomena. meaning. reality

of a particular the purposes mode of analysis it is to restrict the use of a specific for specific concept that in an alternative This would theoretical only mean

framework itwould be justifiable to use the term in its indiscriminate

in general, and concepts But concepts designating political are not neutral in particular, terms. "All political concepts, mean? and terms," writes "have a polemical Carl Schmitt, images, on a specific are focused conflict and are bound to a ing. They

situation" (1976, p. 30). specific a time- and condition-bound is markedly In The "state" concept. of the form of political and historical novelty fact, the singularity we are dealing with is implied by the historical organization novelty to be signified. of the very term with which it came There is as to the origins of the specialists 1949; Meyer, 1950; Mager, (Dowdal, 1968; 1975; Mansfield, 1983). To us the most Skalweit, plausible explana? from the Latin tion is that the "state" is derived status, a term which a person's in Roman the denoted legal position. Antiquity During a broader status final phases of the middle had acquired Ages, from a person to a legally organized body meaning by its tranference as Ulpian's of men. in Roman also had precedence usage, (This status reiRomanae In late medieval and early indicates.) expression or status denoted the form of government modern usage political considerable term "state" controversy among 1923; Kern, in connection Thus Thomas with the constitution. Aquinas, of aristocracy, and democracy, Aristoteleian concepts oligarchy, status paucorum, and status popularis. optimatum, spoke of status ?tat populaire Likewise between and etat Jean Bodin distinguished wrote status of status demo and Hobbes monarchicus, royal, of the body politic But for the designation and status mixus. craticus, as such, Bodin and Hobbes used civitas. The first used res publica of the term appeared the Italian traces of the modern usage during of the institution of the development of in the wake renaissance was a political in possession entrepreneur who, Thepodesta podesta. to a city or a prince. This sold his services of a power-apparatus, or acquisition use in the maintenance of and its proper apparatus to be designated rule came stato, most by the word political It was, however, in Machiavelli's only in the writings. prominently the of the nineteenth that "state" acquired century parlance political a precisely of the supreme within authority political meaning This meaning defined grew out of a pertinent political territory. of the ruler, the territorial characterized by the sovereignty reality of permanent and the existence of his rule, military validity of the private administrative the separation bodies, sphere and the

Karl Dusza

79

of political the opposition either the power, having public sphere, form of princely from rule or that of a unitary power separate public both the ruler and the ruled, to "civil society" (Riedel 1975). or rudiments of the to some of these conditions Approximations of the state may be found in histor? individual traits characteristic how formations. says, "no matter But, Weber ically earlier political may be found in the past, in its full development many beginnings

all this is specifically modern"

term "state"

(Weber, 1958c, p. 295). Applying

the

presents, generically form of the current characteristics this fallacy, the analysis into other historical or, to avoid epochs, on such a level of generality that concrete differences will remains in both cases: not count. The result is the the same the specific, under investigation remain hidden. of phenomena inherent reality of the "general characteristic theories This fallacy was especially in Germany in Weber's times of the state" mass-produced (and one should add) as well as of the "origin of the state" theories France, ease in the conceptual Weber moved with 1931). While (Beyer universe

that either the then, the danger of political rule are carried over

its claims that its concepts of Staatslehre, he opposed had of He held that what the "theories and universal timeless validity. to was a unique historical the state" referred For this phenomenon. same reason, Weber to contemporary attributed little significance of the "origins of the state." What Engels, theories and Oppenheimer as of the state, Weber countless others saw as the origins understood structure in the rule as a separate of political the emergence of a primitive conditions undifferentiated community (1968, pp. to Weber out of patrimonial the state developed 901-902). According structures of domination?both advanced and feudal historically over men. forms of the rule of men and differentiated understands The way, Weber however, value of the state is not that of historiography. a philosopher the "history of what termed the historic positional Weber was well aware in the object" locked

(Adorno, 1983, p. 295), but he delivered this history in a way he held

a sociological From to be specifically the sociological. viewpoint, as sets of social actions, of social phenomena, historical specificity in the specific consists structural forms that those actions take. On as particular the other hand, of the modes structures, specific can develop of social actions, of only in the medium organization of human of Being the mode (Kurt H. Wolff, reality 1950, p. history, relevant is not progression 16). The sociologically however, history, in time. Time is only the neutral medium in which the empirical manifoldness "dates," his of social practice life develops. of specifying Weber's grandiose time and place disregard by vague for ex

80

Politics, Culture, and Society

of English like "at the beginning pressions his practice (1968, p. 724) and particularly events centuries apart, are not symptoms

but stem from his sense, sociological in such a way that only those aspects of it Weber abstracts history" are noted and drawn to the emergence into analysis that contribute contents of specific and structural forms of social and consolidation action.

constitutional history" to each other of relating of his lack of historical "actual From perspective.

The Emergence Given formation the specific structural as can be understood

of the State characteristics of the state, its

involving:

of the use of legitimate force, of the autonomous of political bearers rule, means of the material of power, (b) appropriation in the hands of a "supreme (c) its concentration ruler;" of the exercise of political (2) Vergesellschaftung rule, that is, of a body of officials, (a) the creation continuous whose (b) activities, (c) regulated by set rules, of the will of the supreme (d) serve as transmitters ruler; fusion of autonomous into an all-encompassing (3) power-blocks association with compulsory (a) a territorial basis, (b) a unitary legal order, (1) monopolization (a) expropriation (c) a unitary (d) a system and (Staatsgewalt), public power of direct to and of relationships obedience the public power; by of the of powers from the person of the fullness institution, which,

protection (4) the transfer ruler to an impersonal

(a) as the embodiment

of the will

of the politically

united

(Volk, nation), people of representative by the mediation bodies, (b) expressed trustee of all prerogatives the bearer and becomes (c) and physical coercion. command This

of

serves scheme and expository It purposes. only heuristic in the form of ideal-typical certain general identifies, representation, in the development of the organization of political tendencies rule

Karl Dusza

81

of the state. It does not suggest "historical led to the formation concrete in the sense of Hegelian-Marxian philosophy: nor do they prevail are not their by emanations, phenomena accidents" "historical (Weber, 1949, pp. 102-103). necessity against of a structure of political The formation rule we call "the state" was a nor guided of "accidents" neither sequence guaranteed by the that laws"

Absolute

Spirit or by Objective History. The lines of development

are not to the empirical historical process imputed ideal-typically a standard even components of an evolutionary scheme suggesting to of developments that every political has sequence community as quasi-corporative Political entities constituted pass through. with continuous and associations (Anstalten) compulsory operation are the product of legitimate with the monopoly viz., states, violence, of a wholly Weber stitutional (a) the individual underscores history settlement historical process of what Weber calls the

Occidental world (1976b, p. 16-17).

a number con? of features in European were "typically which in this respect: relevant" of barbarian tribes with a characteristic

organization (war-lords, political warrior-kingship, military retinue, assemblies); popular feudalism of Occidental based on ("free feudalism" (b) the nature and fief combined), resulted in the which contract; fealty of the powers of command and appropriation by "officials" enfeoffed lords; of the Estates dualism and the prince; (c) the evolving

(d) the nature of Occidental Christianity

(e) the tion (f) the (g) the an

(devoid of magic);

institutional (anstaltliche) quasi-corporative, organiza? and cosmopolitan of the Catholic character Church; conflict and Sacerdotium; between Imperium nature of the Occidental and city as a "sworn fraternity" non autonomous (civitates community superiorem

recognescentes);

(h) the largely uninhibited development

(i) the rational character of Canon

of capitalistic

interests;

law and Roman

law.

Unlike

its Oriental forms, patrimonialism

in the Occident meant

the basis of the power of the many great and petty lords, and not the of one central ruler. The latter also derived unconditional supremacy as a patrimonial his power from his status lord, but for this same reason he was confronted other patrimonial "lords in their own by or attached The ruler's power to him by the ties of vassalage. right" was to For all the efforts from the very beginning. thus restricted

82

Politics, Culture, and Society

in the form of an imperial the unity of the Occidental world a multi-centered into being, the political body came were of which set on a course of independent parts The rulers of the individual units development. territorial-political asserted their independence from the imperial overlord increasingly and related to each other as equals. The ensuing between struggles the polities the internal of power accelerated centralization and restore overlordship, constituent the position of the territorial strengthened rulers, who, by the as national as of the modern Even era, emerged beginning kings. were confronted national the rulers everywhere however, kings, by the Estates. Their modus in the form of vivendi was institutionalized a Staendestaat: a system of mutual constraints between the ruler as corporative et maiores and the meliores constituted associations. These unique of European features set constitutional development of "state-building:" the stage for the decisive the struggle drama for the prince and the estates, and between the rising power between In general, Weber territorial bodies. the develop? political interprets as a dynamic ment of the structures of political domination process the substance of which is the clashes between powers. competing of politics The history is for Weber this: on the one hand, basically of the powers the institutionalization of command (typical organiza? tional forms); on the other hand, the emergence of power-blocs and the competition of the powerful either (a) to transform their socially or (b) to acquire into political pre-eminent position prerogatives, to their social ones, or (c) to acquire in addition prerogatives political of political the incumbency offices conflicts). (typical "Typical and "typical forms" conflicts" are, however, organizational only two aspects of one and the same process: it is in the medium of in their struggle the powerful, about the allocation, conflicts between and redistribution of power that the appropriation, expropriation, The latter are but the resultants institutions and modes of develop. of particular conflicts actors. between organization political of the modern state The "heroic of the development is age" the material and ideal by the ruler's drive to monopolize represented means and to assert the royal supremacy of rulership vis-a-vis the In these struggles the ruler was able to draw on the many Estates. to royal lordship, and resources pertaining exclusively prerogatives such as

powers (a) his protective (royal mundeburdium, king's peace, ban on feuds and private armies); as a military leader (b) his powers (Heerban); status as a feudal overlord (dominus (c) his ligius ante omnes);

Karl Dusza

83

as the greatest (d) his resources the regalia (e) (power of taxation, The Weber struggle claims,

landlord tolls,

(the royal domain); and various monopolies).

resulted the Estates of the ruler against everywhere, a princely of patriomonialism: in the resurgence and and a standing army, by compulsory bureaucracy supported were destined were created, which to dissolve taxation, systematic as the Staendestaat (1968, p. 1087). The king came to be regarded was in whose in his person hands the whole realm, embodying of powers; did not tolerate the fullness concentrated he, therefore, not derived will. "Sovereignty" thus came from his sovereign powers form or quality not just a particular of political to mean authority, "in its own essential substance" but political itself, authority

(Gierke, 1934, pp. 41-42). in the king as the famous, resides This political authority though It expresses, c'est moi" makes clear. fictitious, "l'Etat, slogan of the ruler, which not simply claims is the absolutistic however, of sovereignty, but the "repre? the very concept already by implied of the latter; the idea, namely, character that in his sentative" the king, as the supreme absorbs the whole person earthly authority, In the?assuredly real?words of Louis XIV: "The king politic. as a whole, the nation and no individual represents represents another all power, individual the king. Consequently, all against . . .The nation in the king is not embodied in resides authority in the person of the king" in its entirety France: it resides (Jellinek, 1905, p. 658). concern of summum the decoupling developments Subsequent from the person of the ruler and its attachment to the body Imperium as such, conceived as an impersonal of corporative entity politic nature. This qualitative leap in the realm of ideas was prepared by a body life developments, among others, by the fact that the a its creator and had acquired had outgrown bureaucracy princely and the standing life of its own. The administrative machinery as stable remained formations amid the coming and army, which of particular the visible of the embodiments rulers, became going of the political unity of the realm. The idea of the transpersonality association in the juristic its ultimate emerged, finding expression of the personality of the state. It demolished the repre? concept of rulership the sentative-patrimonial conception by separating of the state from the sovereignty of the ruler. The ruler sovereignty or groups came to be regarded as and all physical of persons persons number of real mandatories, the bearer of the state, the latter "organs," of all prerogatives of rulership. being the subject and

84

Politics, Culture, and Society

The State: A Quasi-Corporate,

Compulsory

Institution

Neither
law theories the political

the publicistic theories of theMiddle Ages nor the natural

of the seventeenth commonwealth centuries and eighteenth conceived in terms of an abstract, legal person

(Gierke, 1958;Gierke, 1934;Haefelin, 1959, pp. 24-66). The conception of the unity of the body politic in the natural law theories is based on
at attacking either of contract and aims or at legitimizing case it. In neither is the sovereignty princely as an impersonal conceived association entity separated political For Althusius, and from and posited above all its members. Grotius, of citizens, is identical with the community the the civitas Locke, is represented of the civitas the unity For Hobbes, by the populus. or by that of the rulers of the ruler person (in (in monarchies) the medieval doctrine aristocracies p. 137). and democracies) (Quaritsch, 1970, p. 477; Gierke, 1934,

The State

as a Legal Person

in nineteenth Staatslehre is the conception century German Only as the subject of the and hence of the state as a legal personality, in all its details, of rulership, the elaborated becoming prerogatives or contra?of of the state theoretical discussions foundation?pro and Italy (Haefelin, in Germany, and politics 1959, p. 66). France, these motives theories The concrete juristic underlying political as much are most varied; from legitimist-monarchical they stemmed as from liberal-democratic convictions 1970, ideologies (Quaritsch, a that attributed p. 487; Emerson, 1928, p. 51). Still, a conception as such, to the Herrschaftsverband personality juristic separate, of the ruler and the state, not the separateness and thus asserted of the absorptive the monarchical conception only undermined to the subjection character of the ruler, but implied representative of the exercise of the and regulation legitimation legal-normative of rulership 1933, vol. 1, pp. 1926, p. 749; H. J. Wolff, powers (Thoma, of not just as a system 2-3). The state thus came to be conceived of empowerments, but as a complex as a system of legal relations. The is given both by its organization Herrschaftsverband the legal order. normative embodiment, of the state as a legal personality The abstract concept power relationships in short, and rights, the most varied institutional arrangements unity and of duties of the by its cover

may

(Regierungstypen;

Karl Dusza

85

of government). It is equally valid for a constitutional systems to both is impersonal and a republic. Common character monarchy of the exercise of political rule given by the distinctiveness and unity of public power. There are, however, the marked differences between as to what two Staatstypen of the political is component community to the rank of a distinct elevated the legal personality embodying of concrete and integration institutions. concerns the relation of the state and the difference In French influenced by the Volk). legal theory, of Rousseau, the state is the juristically personified republicanism as a politically and mentally the legal form of the "nation" "people," "The powers of the state belong to the of individuals. united plurality wrote the famous French nation," jurist, Carre de Malberg (1920, p. interdependency The principal nation (nation, 13). In the equally striking words of the nation; it is personification p. 1). authority" (1927, In the German Staatslehre of to constitutional reality, ponding of other "organs," "organ" among the Volk nor the ruler is sovereign. as such. The state is the holder of Esmein: the subject "The state is the legal and the basis of public

corres? the nineteenth century, an the Volk is just an element, the state. As mere organs, neither to the state Sovereignty belongs of all sovereign it is a powers,

the organizational embodiment and unifi? Herrschaftsverband, cation of the capacities of rulership. It is this organization is which as an ideal unity, and not the Volk or the ruler (H. J. personified 1933, vol. 1, p. 435). Wolff, aMachtapparat, an Weber's of the state as principally conception of power, in this perspective. not by is rooted It was apparatus chance of the legally oriented that from the vast conceptual armory Weber the term Anstalt Staatslehre it into picked and, integrating of sociological terms his system (soziologische Kategorienlehre), it for the designation of the structural form of the state. The applied use of Anstalt rather (a quasi-corporative, compulsory institution) than Koerpershaft is intended to emphasize that the (corporation), state is not the embodiment of the united will of the people, but an of power, of which is more instrument the people the object than the 1968, p. 645). the meanings in which juris? nineteenth-century will make used the terms Anstalt and corporation the prudence more above distinction (H. J. Wolff, 1933, vol. 1, pp. 1-87). precise an association of persons Where is to be endowed with juristic as a it can be constructed in two possible ways: personality, to both and as an Anstalt. is the hypo Common Koerperschaft subject (Weber, A review of statization of the abstract unity of the association, the fact, namely,

86

Politics, Culture, and Society

not experienceable is transformed that "a perceptively unity of wills into a person the individual members" transcending (Gierke, 1954, of the legal sphere of the members p. 968). The result is a separation as individuals from the legal sphere of the association. The legal of the latter do not affect the individual relations members but are to the separately constituted unit. associational imputed concern Anstalt The differences and Koerperschaft between the as well as the source criteria of associational of membership the body of will. As a corporation associational (Koerperschaft) as a fixed group of persons is constituted members (Weber, 1968, p. the status of membership 707). These persons, who acquire according to fixed rules, are as a whole of associ? the source and "carriers" on by virtue of which of ational is carried the administration will, their mandate. but the Anstalt has no organized body of members on it is represented which and which by operate only "organs" to certain objective of a group of people determined behalf according or according to the discretion of the organs criteria (Weber, 1968, pp. of the juristic person, These 707-708). people are not the "carriers" By contrast, of the activity of its (the Destinaere) object passive some influence on the management have of the organs. They may is not founded normatively. of the Anstalt, but this influence affairs to Gierke, the difference Anstalt and between According stems from of the dualism Koerperschaft fellowship but the are

(Genossenschaft)

and lordship (Herrschaft) (1954, pp. 958-971). To

of Koerperschaft, to the latter the concept the former corresponds In a Koerperschaft it is the empirically that of Anstalt. existing that is transformed into an imaginary unity of the members unity as a person. In an Anstalt it is the empirical lord and and constituted into a legal person. his will that are transformed The corporation a fellowship, wills the legal form of the associated of the while is a Herrschaftsverband, the legal the Anstalt members, of some kind of rulership. form of the exercise organizational is then

When Weber adopted the term Anstalt

sociology, its essential of political "compulsory an Anstalt, unified will

and integrated it into his

it of its legal-technical but retained he stripped meanings, as a concept characteristic the very principle expressing force confronting domination: the organized individuals, as if from the outside. As of the association," members not as the embodiment of the is considered the state of of its constituent parts, but as a specific organization ofthat will, however The generated. or the and not the substance aspects The principal thus into the foreground.

the control and administration and organizational functional of political power step goals

Karl Dusza

87

are not the totality actors in this perspective of the members of the but the office-holders, "the rulers and their community, political staffs." It is in their normatively acts that the existence of regulated a political as a cause can be and effect association, complex, experienced directly.

TheMonopoly of Legitimate Physical Violence

of all prerogatives of command and physical coercion of a relationship and the formation of public power" to and protection direct obedience by the public power, have created a basis for political that contrasts with conditions power sharply in Europe that prevailed is Nowhere up to the Age of Absolutism. this contrast to the conditions than with and sharper respect as the specific means of violence of political domina? organization The fusion in a "unitary tion. An association maintains not always constituted that monopolizes force legitimate physical area of the earth's surface in a definite this monopoly of history. been here, but is a late product and has

The political

bodies of the Occidental

Middle Ages

were

so

of their constituent parts had the right, not to on all members, to issue commands mention the capacity, binding and none of them had the exclusive to back up commands right by was to violence all over the force. The diffused physical right so that, as Brunner political association, puts it, "every member owned part of the executive power" (1965, p. 55). Not only was there no monopoly of force by the prince, but he who by status qualifi? was denied cations the right to bear arms, was excluded from the association. The latter was not a group of persons political subject to an order sustained of an "impersonal by the force-monopoly organi? an "association zation" but was of persons" (Anstalt), exercising rulership as a personal right, including the right to violence (Weber,

that none

1968, pp. 643, 670, 712, 843).

as the chief out the monopoly of legitimate violence By singling of the state, Weber characteristic the latter from clearly separates the political associations that historically it. But that same preceded sets the state characteristic from all other apart concurrently associations. The state, Weber from all other says, differs existing to the drastic associations with nature of its means of respect ultimate viz. physical violence. The state is today the only control, that successfully association claims the right to apply physical force in the maintenance of its order (Weber, 1968, pp. 54-56, 904; Weber,

88

Politics, Culture, and Society

associations p. 78; Weber, may 1958d, p. 334). Other apply more precisely, force only to the extent permitted, physical prescribed on his own. He can individual has this right by the state. No as a repre? to violence resort in his only legitimately capacity an "organ," of the state. sentative, 1958b, of violence The monopolization by the state has been accompanied, then, by the of those aspects the gradual of separation on force, from the rest of that are based of force 1981, p. 173). "When a monopoly are created social spaces Elias, "pacified from acts of violence" that acquire essence very of the apparatus of pacification, spread i.e., the relations between men human relations (Weber, is formed," writes Norbert are normally which free men The relations between coercive

(1982, p. 236). character that is considered the pacifistic-moralistic of social But this "radical moralization" of the living. life is only possible communal because the threat of physical force, as the ultimate of the order of the community, has been guarantor to barracks" "confined and from "this storehouse it breaks out only in extreme cases" is banned, Violence taken out, (Elias, 1982, p. 238). so to speak, from human not in order to get rid of it forever, relations, it into a separate but to transfer from sphere. Force is not eliminated but is deposited and stored in a separate of its own, domain society, from which and does spread out into the whole it might community. As an association that has the monopoly of force, the state is the a definite area. Weber within territorial is rather supreme authority on this point, claiming that "the assumption that a state equivocal are of the political 'exists' only if the coercive means community to all other communities, is not sociological" superior (1968, p. 316). He refers, among other things, to ecclesiastical is valid law, which of the state and can even come to conflict with state independently for example, in Bismarck's Germany. law, as happened,

To put Weber's of the state's dictum the supremacy concerning we have to recall his definition into proper perspective of law power as a system some kind of of norms for the enforcement of which is available. Not all law is state-law, coercive but all those apparatus are "law." Now norms that are enforced since the by some agency of the of physical coercion has the monopoly exercise become the enforcement of its community, by any other association political own autonomously norms to "psychological created is reduced sense in the broadest of the term. While of coercion" this kind can be as effective as direct for instance, ostracism, coercion, it has limits in two important it can be respects: coercion, physical directed include the "associational only against With any kind of punishment. and it does not members," to the former: if the respect

Karl Dusza

89

member

over him. With it loses its jurisdiction the association, norms of associational is a "crime" latter: the breach respect if it is stipulated and be can, accordingly, by state-law, only as such only by the state. Any other association than the punished over an always state has, jurisdiction precisely then, only limited quits to the

delimited plurality of individuals

The

(Weber, 1968, pp. 695, 699, 904).

on the norms so to speak, of associational is based, validity on of state-law is based while the validity of personality, principle in the type of the difference of territoriality. the principle Concerning an association has Disziplinaergewalt, coercion: power; disciplinary in principle and the state unconditional has Herrschergewalt,

irresistible power (Jellinek 1905, p. 415).

as Herrschen is to Jellinek, of state-power the character the state from any other association. that distinguishes force Weber's of Herrschergewalt corresponds concept to itself of the state. It is because the state has arrogated monopoly that it is an "irresistible coercion the right to physical power" able to to invoke It does not have the enforce its norms unconditionally. of other associations, but is able to generate power by itself the and set them in motion necessary powers by its own autonomous According the criterion To Jellinek's of sovereignty this: negatively, will. The concept expresses basically to the power of other associations; of the state-power the opposition and autocephalous of the character the autonomous positively, a und Blankovollmacht, state. The power of the state is a Generalto create the ever necessary and systematic potential generalized means to the enforcement of its rules (Krueger, and competence 1964, p. 829).

Political

Rule and Legal Norms

of the is the defining of physical attribute violence The monopoly In fact, the monopoly of not the only attribute. state. It is, however, as a component sense only if it is considered violence makes physical of characteristics that are constitutive of a particular constellation is one of these additional for the state. "Territory" characteristics of force. That is to say, the related to the monopoly and is closely of a of force is valid within the confines state's monopoly only area is the Staatsgebiet, area. This territorial territorial is authorized which the state defined space within precisely acts coercive 1961, p. 46). In this respect (Kelsen, perform of the state-power of the state means the sovereignty sovereignty definite a to the as

90

Politics, Culture, and Society

the state needs be more than just a power" "ordering of force. Given as conduct the nature of action, oriented monopoly to a meaning, rule implies the imposition of an order political and specific guarantees as an actual object of its validity (Ordnung) of action-orientation. Duration and effectiveness of power can only be secured the creation of such objectified of mean? through system the power-holders orient their actions and ings, to which normally in the name of which obedience from the power they demand addressees (Weber, 1968, pp. 56, 652, 904; Heller, 1931, p. 304). as a nature of such an objectified The peculiar of meanings system form of the political order" and "rational the structural legal as "state" are most interrelated community designated intimately law is "rational" in the Modern (Weber, 1968 pp. 655, 809, 846,957). sense that it is planned and is created and is therefore intentionally, in its meaning, in its impact and infinite determinate calculable in It thus makes its applicability. the "most and possible precise of political and regulation the least practical activity, guidance of the behavior and balancing which constitutes fallible weighing and activates political power" (Heller, 1931, p. 304). By virtue of its law lends persistence and continuity technical attributes in time to the "evanescent and of power" manifestations ever-changing the empirical constellation of (Heller, 1931, p. 304) and transforms into a normatively structured into a hypothetically powers whole, The legal order contains authoritative pronounce? system. gapless as to the residence ments and incidence of political It power. in a normative, determines hence form the generally binding, of their creation, the mode of the political their organs community, as well as the mutual the circle of their competence, relationship, to the political in his relation status of the individual community 1904, p. 491; Loewenstein, (Weber, 1968, pp. 642, 644, 652; Jellinek, 1956, pp. 46-75). 1957, p. 127; Wheare, of dominancy relations This normative is the legal con? plan as distinguished from the factual and empirically ascertain stitution in a community of power able distribution (Loewenstein, 1961). as a characteristic in the latter of Constitution sense, pattern of people in and subordination, coordination, superordination for every political to each other, obtains But relation community. in the sense of a normative, and constitution ideal, planned, of command of the powers and of the conditions ordering systematic to the modern state as a quasi-corporative, of obedience is peculiar compulsory association.

the supreme pp. 244-246). To be an

and

exclusive

territorial

ordering

power

(Heller,

1963,

Karl Dusza

91

The Separation

of the Private Sphere

and the Public Sphere

can be created The idea that the political intentionally, community as a unitary of precisely defined that it can be organized system was necessarily remote from the nature of patrimonial competences, rule was structures of domination. Political and feudal segmented a multitude of overlapping powers by various appropriated It was in the juxtaposition individuals virtue of special privileges. by of one holder with of privileges the limitation and in the mutual was constituted. one that the political of another power community was not amenable to structure of "acquired This rights" rigid into 1968, pp. 1040, 1099). Accordingly, (Weber, regulation was used either in the sense constitutio the Middle Ages throughout on of Aristotle's ("a way of life" of the polis), or as denoting, politeia such the model certain of Ulpian's enactments, definition, imperial as the two "constitutions" of Frederick the rights of II, concerning or the Constitutio of Louis and secular the spiritual the princes, from the Papal of the the independence Bavarian Curia asserting of the emperor (Meisner, 1962). to a systematic, of the term, referring connotation structure of the total of the body comprehensive plan politic, of the formation of power-centers in the wake strong emerged of particularistic tendencies to overcome the centrifugal enough election The modern into the field of the center's to draw and these powers powers in his autonomous As the absolutist absorbed prince operation. of rulership and regarded all powers of its instance every person as emanating from his own sovereign the body politic exercise will, as an objective, came to be viewed and calculated, increasingly willed entity. political in the wake of the concentration of power in the On the other hand, hands of the absolutist and of its bureaucracy, prince political as Habermas into a concrete authority, puts it, "consolidated for those who were merely subject to it" (Habermas, 1983, opposition p. 32). The authority latter became excluded from public individuals," "private a politically and constituting neutral the population, to the supervision and care of the bureaucratic subject abstract

publikum, which authority (Kern, 1949, p. 54). The "civil political society," as including since antiquity had been conceived both the community of citizens the "common (polis, civitas) and the political constitution, res publica), as being a politically in other words, wealth" (koinon,

into its fell apart sive politicus), civilis constituted (status society mani? to the status politicus, In contrast constituent components. of permanent in the continuous administrative activities fested

92

Politics, Culture, and Society

bodies

now the status stands the purposes, civilis, serving public of concerns realm of "private and activities, that is, which affairs," are not connected of political with the exercise directly authority

(Riedel, 1975, pp. 746-747).

of the private dualism evolving sphere and the political-public rule cannot be ascribed has given rise to the idea that political sphere as pertaining to the individual to their persons, but power-holders or to the institution as to the political must be ascribed community even if he is in the highest individual such. The power-holder, identical with the man who possesses is thus no longer position, to exercise in his own right. The of the powers right authority from the person and is incorporated into the command is detached as an impersonal conceived entity of corpora? association, political an Anstalt. of all sovereign The latter is the bearer tive nature, The the bearer and trustee of "office power," and the acting prerogatives, are only its officials. Whoever holds power holds it as a individuals and compulsory and wields trustee of the impersonal association, on behalf on behalf of this association, of the the powers of command is not state (Weber, 1958c, p. 295; Weber, 1958, p. 670). The official as he was under feudal and servant of a ruler, the personal a of the state, or of the public, but a servant authority, patrimonial are devoted to impersonal whose activities and servant," "public in of the official This position finds expression functional purposes. are in the nature of a "duty," of a "specific that his activities fealty" to the purpose of the office (Weber, 1968, p. 959).

Political

Rule as an Office

of the legal and factual The term officium, separation signifying of private from the public the separation the private sphere, sphere to modern is of Roman origin, bequeathed rights from official duties, In the of medieval Law. Canon law through the mediation public to specific referred of Roman 1953), officium usage (Berger, lawyers or in family for example, duties moral relationships originating, con? to the duties it also referred amicitiae); (officium friendship of another interests with the defense nected (officium person's denoted In public law, officium the duties curatoris). tutoris, officium as the office as well in public of a service of persons employed to The term was also applied with its personnel. together magistrate provincial
governors.

offices

and

officials,

and

in particular

to provincial

Karl Dusza

93

The Romanist and obligations

conception lived on

or sacred ecclesiastical Heintschel it has writes, at connotations various office has ecclesiastical epoch of the early Church, out Christ's commission of those who personality p. 57). According organizations decisive fact linkage (Weber, with

of "office" as a set of impersonal duties as an in the canonical institute known as office (Heintschel, 1956). Although, never been defined and has had precisely of an times of history, the concept different after the end of the charismatic indicated, a clear separation of the duty of carrying to salvation of leading mankind from the have taken this task on themselves (1956, the legal construction "For of the

to Weber, it was here that its point had of departure is the separation of charisma the

institution and, 1968, p. 1164). The Church charismatic and became the bearer and individuals, personally trustee of an office charisma. The "trust fund" of eternal blessings, to everyone, offered could thus be administered though only by a professional certain As an qualified individuals, by priesthood. institution Catholic ciation Church (Weber, to which charismatic was the first sanctity had been quasi-corporative, 1968, pp. 829,1166). transferred, compulsory the asso?

(1968, p. 829). from the person and its with the office" particularly, to be a community of ceased

Still, the concept of the Anstalt

was not fully developed

in the

state. The technical purely legal sense until the period of the modern as a separate of administration needs led to the establishment of the state with its heteronomous and hetero person juristic To separate the powers of command at the organs. cephalous of an office from his private of the incumbent disposal sphere, to vest as such, and to imply that the exercise in the institution these powers are the concrete of these powers is subject to legal regulation?these for the emergence of the conception of the state as a legal grounds of the state as a juristic The is a legal person. concept person on specific to bestow technical instrument individuals definite to impute the actions of these individuals to obligations, to give to the unity of the actions of the expression and to indicate that the state as an institution has an individuals, existence and above the individuals who exercise beyond specific as official functions duties (Weber, 1968, p. 670). The political association thus is considered not as a mere aggre? but as a system of offices which exists inde? gate of individuals, of the individuals who are incumbents of the offices and pendently which of the state" is the has, so to speak, a life of its own. "Organ rights and the state, technical-legal term by which the independence from the individuals

94

Politics, Culture, and Society

to be performed by the state as well as the possibility are expressed. A indivisis transmitted pro partibus a complex an organized of competences, set of is "state-organ" and obligations?defined without to duties, regard empowerments, on behalf a function of the political community persons?to perform are created 1970, pp. 42-58). The organs by (Ross, 1961; H. J. Wolff, not only defines the competences, i.e. circum? the legal order, which of obligations to perform the the sphere scribes duties, provides and subjects the use of the with the necessary incumbent powers, of the functions of their being means basis to definite but also creates the of compulsion conditions, of their legitimacy (Weber, 1968, pp. 52-54, 218). "A modern as a legitimate its functions exercises government jurisdiction, on authorization as resting that it is regarded which means legally norms of the state" (Weber, 1968, p. 644). by the constitutional can only be per? that even impersonal functions Given, however,

formed the legal order also defines under persons, by individual what of what and through conditions, by virtue qualifications, an individual can acquire what the competence specific procedures to act as an organ of the state. The specific function of public law is to create of specific actions the criteria individuals by which specific can be qualified as actions of the state so as to distinguish them from of private From actions individuals. this aspect, the modern state can be viewed as a consociation of bearers of certain defined imperia, to give rests whose commands rules that are upon legitimacy or by established by enactment rationally (Satzung): by agreement even though the "will of the imposition (Weber, 1968, p. 652). Thus, not every kind of will can state" is but the will of concrete people, a will possessed but only of certain commands, binding produce characteristics, office particular to a by the law and assigned 1967, p. 81). (d'Entreves, as something in the modern state appears of this, power Because are given name of the impersonal in the "Orders norm, impersonal. of a personal rather than in the name authority" (Weber, 1958c, p. is himself to an impersonal 295). The person commanding subject order and can give commands only in the form of norms. Obedience are purposefully is thus given not to the person, but to norms which authorized out, enacted thought 1968, p. 217). and announced with formal correctness (Weber, a will

Limitation Political limitation. power There

of Political

Rule to a two-fold as of power

in the state is thus inherently subject the limitation is in the first place

Karl Dusza

95

in the very notion of political rule as determined by law. It is inherent an office and exercised an Imperium in vested to, and in according norms. Such norms, Weber writes, the name binding of, generally the sphere in which act as restraints upon the Imperium within they issue only commands of a certain "The power holder may obtain: issue all sorts of commands except in certain cases or type, or he may to certain conditions" (1968, p. 652). subject that the exercise of power be in conformity with The requirement for the state's organization and for the law implies certain principles in it. In a strict legal sense, however, it does of powers vested exercise not establish any rights of the individuals subject to power. Legality of the duties which, because duties of the government, only implies can be, and, in fact, are and telos of state-power, very nature in the first place, in a The state is engaged, disregarded. frequently permanent "absolute in which for power with other polities, its respect struggle or change the external and internal end is to safeguard

distribution

of power" (Weber, 1958d, p. 334; Weber, 1980). Besides

other of this primary the state pursues the effectuation concern, as well, objectives of an ethical, concrete social utilitarian, objectives or some other kind. "In the final analysis," Weber claims, welfare, course of the state's inner political of justice "the whole functions, and unavoidably is repeatedly and administration, regulated by the of state'" of 'reasons p. 334). (Weber, 1958d, objective pragmatism From this point of view, to the state "the individual and his interests are in the legal sense objects of rights" rather than bearers (Weber, 1968, p. 641). rise to the idea that a boundary of this has given The perception must be the sphere of the state and of the individual line between a boundary and behind the state cannot line which overstep, drawn, from any intervention is protected which the individual by public of this area is (Loewenstein, 1958, p. 315). The inviolability authority into the positive by the incorporation legal given legal expression as and "rights of man" "fundamental liberties" order of certain as claim norms of the state of the members that is, rights, personal over against the state as a whole 1901; Jellinek, (Jellinek, 1905, p.

398).
in the so-called A third type of restraint is created "constitutional of powers. In this case it is not only norms, states" by the separation and groups, but specific social and their functions, relationships which limit One with conflicts another authority. Imperium of the one limits the extent of and the extent of authority Imperium, of the other (Weber, 1968, p. 652). authority The following division of powers may take different forms, among which a plurality three are the principal kinds: a) it involves the of

96

Politics, Culture, and Society

or a number of persons in offices office, are directly whose of authority b) it involves competing; spheres case a governmental act is only legiti? in which coll?gial decision, mate when it has been produced of a plurality of by the cooperation to rationally determined not rules; c) it involves people according of spheres of jurisdiction the separation but also of ultimate merely incumbents of the same 1968, pp. 271-273). in the exercise of the ultimate of rulership powers or bodies which either are governmental implies specific agencies which influence Such directly (limit) governmental agencies. have the following functions: limiting agencies principal a) a of rules which of of the creation the exercise govern monopoly or at least of those rules which limit authority political completely, of the bearers of command; of the powers the independent authority an of adherence to the rules, if need be through b) supervision are of the granting of the means and c) a monopoly which inquiry; (Weber, Collegiality of the governmental function (Weber, 1968, pp. 271-272). to Weber, of "the functionally According specific separation a modern is not wholly powers (1968, p. 282). As phenomenon" Weber cites the division of ultimate in historical precursors, powers an independent the societas Christiana between authority political the separation and an independent of the hierocratic authority, of competence of the different Roman magistracies, and the spheres as a separate in the demarcation of military command "office" states of the Orient, in China, the empire of the Persia, patrimonial and the Ottoman (1968, pp. 282, 279, 1025-1031). Caliphs, Empire of separation "But in these cases," Weber "the concept of writes, loses all precision" powers (1968, p. 283). of patrimonial The limitation by an estate-type political authority necessary of powers, division mates the modern of the medieval Occident, approxi? more The appropriation of closely. conception and of the means of administration powers by privileged governing and other feudal the competition among groups, claims, privileges, of into a kind feudalism turned Occidental rights appropriated characteristic powers

constitutional 1968, pp. 652-653, 1082). The government (Weber, the subjects' extent of the ruler's power was restricted by exemptions, or sanctified and privileges, whether these were granted immunities, to these of estates The system gave some permanency by tradition. both and limitation of in that it combined relations, separation structures. But with this type of powers corporative-institutional on contracts between the prince of powers was based distribution

Karl Dusza

97

and and

was both inimical to functional which the estates, regulation of the community. the larger segment excluded form of the sepa? "The rational, enacted constitutional formally a modern "is entirely ration of powers," Weber claims, phenomenon" on the basis of a unique of constellation (1968, p. 283). It developed

of the prince such as the financial needs historical circumstances, of conflict acute by the permanency between the European made to secure for him the the necessity financing through polities; in estates; consent of privileged assembled the rise of persons of providing interests the prince with the needed capable capitalistic a share in political but in turn demanding the power; provisions, in the wake of the disintegration of feudal seigneuries of a emergence new its claim to be which asserted stratum, increasingly plebeian of the into the political the articulation included community; in the form of a radical of the "fourth estate" demands republi? into the which transformed the medieval idea of contract canism, of volont? concept gen?rale given legal ethical-metaphysical as the pouvoir in the doctrine of the people political expression and last but not least the rationalistic constituant; spirit of the

eighteenth
nature through created are

century, filled by a belief that the mechanical

world community

laws of
and that can be

1961, (Loewenstein, p. 436; d'Entreves, 1967, p. 144). constitution" calls a "rational is thus nothing else What Weber a system of rules?enacted, announced and promulgated than to formally correct the according procedures?which subjects to normative of political and which, power dynamics regulation by in terms of their functionally powers dividing character, objective of rulership. and constrains the exercise It is the controls, limits, on the of limitation of power and separation coexistence of powers basis of the distribution of competence its various among organs so distinctively characterizes the modern state. which "Indeed," state is essentially Weber characterized says, "this modern by the it is a consociation criteria: following (anstaltsmaessige of bearers of certain defined these Vergesellschaftung) imperia; are selected to rationally bearers enacted their according rules; are delimitated from each other of rules imperia by general of powers; and of them each the finds separation internally legitimacy of its power of command defined by set rules of limitation ofpower"(1968,p.652).

to the social-political transferrable of reason a balanced the agency political of powers by the functional separation

98

Politics, Culture, and Society

The Struggle

for Power and Purposive-Rational

Formalism

we can say that the modern In light of the preceding analysis a gigantic state represents in constitutional historical experiment in political of force, inherent the brute facticity transforming rule, and regulated of domina? into a normatively founded relationship of authority rests upon tion where "the legitimacy the legality of rule" (Weber, 1958c, be an enormous p. 299). Still, it would general to think state naivete instance of the that in the modern every of power and all struggles exercise about its allocation and redistribu? tion are but a series of actions channeled hence by norms, peaceful of political The normative rule has limits. and calculable. regulation or less In the liberal postulate of the rule of law politics is more of norms for the exercise identical with the creation of power and in the forms of adjudication and administration. their application not only It contains of politics To Weber, the domain is much wider. all of the functions of domination, but includes the orderly discharge from whatever aim at the and projects which, those actions motives, or redistribution of positions from which allocation, appropriation, on others and supported can commands by coercive means binding of the often irreconcilable be issued. That the unavoidable struggle lead to the mutual ideal and material interests does not normally of the competing the is a result of many annihilation factors, parties set up of the modern most of which is the institutional important state. In it, the potentially life-and-death of constitutional struggle for interests is transformed into a pacified competition competing and hence, votes and into a normatively electoral regulated, coercive threat by those in power (Weber, 1981, p. 173). But calculable even for the legally seats of this regulated defined competition which but does not power, a form of political only reduces struggle to the use of force, can and actually does the appeal eliminate wholly are too which create "unstable and consequence-laden situations," to standard to be fully subjected regulation (Poggi, unpredictable 1978, p. 7). of the life of a at the critical It is therefore junctures exactly are unable to determine the course that norms community political comes to the fore most of norms of political This weakness action. that lead to the situations so-called emergency during obviously writes that "it is of "crisis government." Loewenstein establishment a crisis constitutes to find accurate legal criteria for what impossible . . ." (1957, p. 219). The courts are, then, not or emergency situation is an emergency there to decide whether situation, qualified

Karl Dusza

99

warranting that a crisis

of "crisis government." The decision a problem is a "political" decided upon one, to the empirical of power in the constellation and solved according 1957, pp. 217-227). (Loewenstein, community political and conflicts Even normal situations under may conditions, for the solution of which the legal constitution does not offer develop the introduction has occurred In fact, such situations arise exactly because guidelines. an empirically It is contains such "legal vacua." the constitution state brought fact that the modern constitutional ascertainable a "closer between the normatively coincidence" about practical of power than before had been and the actual possessor assigned

normative

possible
constitution

(Emerson, 1928, p. 257). Still, the conception of the legal

of the state as a closed and gapless of norms that system a normative in the for every eventuality solution emerging provides exercise about, power is a mere of, or in the struggles juristic fiction. of fundamental the distribution The most questions concerning or they are left cannot either be normatively power regulated intentionally unregulated by law. According to Weber:

the interested party or parties who This was done simply because in exercised the decisive influence on the drafting of the constitution that he or they would ultimately have sufficient question expected power to control, in accordance with their own desires, that portion of social action which, while lacking a basis in any enacted norm, yet had to be carried on somehow (1968, p. 330). limit to the extent of the normative of power is Another regulation of the organs set by the fact that the hierarchy of the state has a is to say, the order of positions of the powers bottom and a top. That in terms of subordination and superordination must of command an organ or organs no earthly end with above which necessarily the adherence stands. lower Thus, while authority by any organ than the highest level organ to its normatively defined competence is guaranteed and legally factually by the control superordinate over it, in case the highest exercise to or organs are unwilling organs the functions of practicing to them by the incapable assigned no legally unit of power constituted is at hand to constitution, we mean enforce the norm. law a set of norms If, therefore, by it is evident that with by a coercive guaranteed organization, we can speak to the apex of power reference of the hierarchy normative of power only in a very limited sense. Effective regulation on the exercise constraints of power by the highest of the organs norms as by the mutual state are set not so much limitation by legal

100

Politics, Culture, and Society

of the power Such the

of one organ however, individual

by

constraints, of the status

the opposing power of another organ. a normative do have in that character on the constitutional is based organs

of powers. In the confines of their constitutionally defined the jurisdiction, can exercise their power more or less freely, according to their organs own discretion. The of the acts of the character self-determining are in that their competences is juristically organs highest expressed in terms of the ultimate defined to them, rather that accrue powers than in terms of specific actions that they must undertake. The legal norms by which an organ is constituted not what the organ prescribe an organ a must do but what it can do. In other words, is not simply a set of competences, bundle of precisely delimited but is functions, on to perform of legally secured the necessary tasks capacities, of the political organization. is especially of that segment Such free activity characteristic of the unitary is called "the government." The power which public to be undertaken function the modulation by this organ, namely, of overall and articulation is by its very nature to inimical policy, in the sphere of This is most obvious detailed and formal regulation. of "world politics" from the foreign policy. The exigencies resulting between sovereign polities require that the government competition a free space to articulate to the demands be allowed its reaction of the situation. But even in the domain of domestic the compe? politics, more or less free rein of organized tition in a interests, given behalf constitutional-democratic for the govern? state, and the necessity or to ment to respond to the articulated of political needs groups, a policy in anticipation of latent needs, make articulate the regula? of the highest tion in minute detail of the activities executive organs of free activity, action stands proper, sphere political as Herrschaft on im Alltag, which administration functions opposed of the formal rules of a bureaucratic order. It is oriented the basis of ongoing, calculable toward the satisfaction needs with routine, means. of free there is an element routinized Nevertheless, ordinary, even in this sphere of minutely circum? activity regulated, precisely is not mechanical Administration scribed competences. application of policies of general rules to particular cases, mere implementation set by the government. It is none of these, not simply because each case has peculiar individual the formalized qualities transcending to guide the discharge of administrative but rules designed duties, reasons. for more important impossible. To this

division

Karl Dusza

101

in administration of a political The decisive basis for the existence element is created by the institutional constitu? set-up of the modern that in a parliamentary tional state; by the fact, namely, democracy are selected the ministers, the administrative heads, by and are to the parliament, viz., the representative body of the responsible in a community. forces are, then, at the same time They political of a complex of routinized and the heads activities, on the one of parliamentary the leaders factions, who, politicians, of their factions to the cabinet, the demands hand, mediate and, on the government vis-a-vis the factions the other hand, represent administrators,

(Guilleaume,
therefore,

1967; Redslob,

1918; Salter,

1952). Administration,

to the requirements of take place solely according in a political but takes place the field, where purposive-rationality, are largely to which is oriented administrative purposes activity of social forces articulated defined by the political by the demands cannot in the parliament. must These articulated needs, however, into harmony with each other in order that they may brought to the requirements satisfied of purposive-rationality, according sine qua non of orderly administration. parties This functions be be the

strain between formalism and political purposive-rational of the modern state than the much characteristic is more of bureaucracy and political A rigid discussed dualism leadership. of administration and government obtains more promi? separation state. in the modern than bodies political in the former rested with the monarch, leadership who, to the expert advice of his cabinet, made his listening although on the basis of his autonomous The decisions will. task of the a body of men of princely advisors and of the cabinet, composed in the implementation heads of administrative consisted of resorts, of the princely will by translating the manifestations them into the of purposive-rational action and transmitting them in language to specialized the form of administrative administrative directives, were of policies The determination and their execution agencies. nently Political in absolutistic to personnel both with and to the thus clearly respect separated tasks involved. since well into the They were all the more separated was concerned nineteenth first of all with the government century of foreign the management of the management affairs, viz., with state in its relation to other states. Politics meant here principally "world politics," to the maintenance decisions and activities oriented or change of the distribution of power between states. The sovereign of internal maintenance order was not politics admini? but mere stration (Guilleaume, 1967).

102

Politics, Culture, and Society

of politics, democratization of the powers of the collegiate body of the constitutional empowerment of policies, formulation and the The

namely, monarch

the expropriation by a as political leader, the to participate in the parliament into the political incorporation

of larger and larger segments of the population the process through extension of the suffrage, has changed the relation of government and administration. the management of foreign affairs does Though as well as the way not lose its importance, its weight it is carried out a sphere It still remains of largely discre? considerably. change to carry it out is selected in a but since the personnel activity, tionary of competition between domestic the govern? process political forces, of their activities ment must of the result to the give an account of leadership. forces that put them into the position The constellation as the constellation of internal forces becomes of thus as significant on an added states. Domestic affairs take power between signifi? aims not only at securing because the government the power state but pursues of a vis-a-vis other states, objectives on the or ethical kind postulated forces utilitarian by the very of which its power is based. support of the tasks of policy The determination, intertwining policy of politically and of securing the support implementation, signifi? cant of the population life its segments gives modern political or minor, of the major It is the basis but in any dynamics. special case perpetual, excitements that the newspapers bring us day to day. fall not only because there are momentous in Governments changes are of political but because the empirical constellation forces, they of the and ever-changing of of meeting needs the articulated incapable or because to ensure do not manage the factions, they political of the politically of for their policies segments support significant the parties in the parliament. the population by represented of government and admini? The fact that the purposive-rationality of assuring the requirement is perpetually the stration by hampered as well as of public factions of parliamentary consent by opinion and manipulation, is responsible for the persuasion, negotiation, of governmental in all consti? of a modicum presence inefficiency of this inefficiency in electoral The elimination democracies. tutional As is both and undesirable. democracies impossible long as the institutional mechanisms of political of the exercise and the power set-up are such that they make of political will-formation of the demands of various the articulation and mediation possible of the political there will be dissension, community, segments means. is what Its only and conflict. This pluralism competition, cance

Karl Dusza

103

alternative rule. Here competition particular

of conflicting interests by totalitarian of being instead the outcome of the goals, political are set by one and conflicts between groups, pluralistic are implemented and of sheer group by a mixture is the suppression

means. of coercive The and of the naked violence manipulation outcomes of interests, and policy is thus harmony goals, apparent of of "the pacifism manifestation else than the necessary nothing of the only really under the tutelage social inescapable impotence in state and economy" power: the bureaucracy (Weber, 1968, p. 1403).

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