The State and the Law

Think of a housing society. It exists because a set of bye-laws created it, named its committee and fixed its powers; without the bye-laws there would be only a number of neighbours. Yet once formed, the committee makes new rules, collects dues and penalises defaulters. Did the rules create the society, or does the society create the rules? The same puzzle, on a vast scale, is the question of the State and the law. The State makes and enforces law, but the State itself, its legislature, its courts and its officials, exists only because legal rules constitute it. This note explains what the State is, how writers have accounted for its origin, and how the great schools understand its relation to law, before turning to the meaning of 'the State' in Indian constitutional law.

Figure: The State and the law as a reciprocal relation: Austin reads the arrow from the State to the law (law as the sovereign's command), while the reverse arrow shows the law constituting the State (for Kelsen the two are one order; for the social contract theorists a compact founds the State)

1. Meaning of the State

The word comes from the Latin status, a standing or condition. Machiavelli, in The Prince, is usually credited with popularising 'lo stato' in the modern sense of a political body holding power over a territory. The State must be distinguished from related ideas. It is not the same as government, which is only its agency: governments change at elections, the State continues. It is not the same as society, which includes all human relationships, many of them outside politics. It is not the same as a nation, a people bound by common culture, language or history, which may be spread across several States or share one State with other nations. The State is the politically organised community, possessing supreme coercive authority within a territory.

2. Classic Definitions

Definitions of the State reveal the definer's school: political scientists stress territory and organisation, analytical jurists stress force and justice, and Weber stresses the monopoly of legitimate coercion. The most quoted textbook definition is Garner's.

3. Elements of the State

The Montevideo Convention on the Rights and Duties of States (1933), the standard statement in international law, lists four qualifications for statehood: a permanent population, a defined territory, government, and capacity to enter into relations with other States. The fourth replaces the political scientist's 'sovereignty' with its practical, outward-facing test. Recognition by other States is a separate question; on the declaratory view, which the Convention follows, statehood does not depend on it.

4. Theories of the Origin of the State

The divine theory

The State was created by God, and the ruler is God's agent, answerable to God alone. In England the divine right of kings was championed by James I and by Filmer's Patriarcha. It justified absolute monarchy and collapsed with the rise of secular thought.

The force theory

The State is the product of conquest. Many States were indeed founded by war, but force explains how power is seized, not why it is accepted as legitimate.

The patriarchal theory

Sir Henry Maine, in Ancient Law (1861), argued that the primitive unit of society was the family ruled by the eldest male ascendant (the patria potestas of Roman law). Families grew into houses, houses into tribes, and tribes into States, with the patriarch's authority passing to the king. The theory fits Roman, Hebrew and Hindu evidence, and its lasting insight is that early law was the law of groups, not individuals.

The matriarchal theory

J.F. McLennan (Primitive Marriage, 1865) and Lewis Henry Morgan (Ancient Society, 1877) argued, against Maine, that the earliest social organisation traced kinship through the mother, and that patriarchal families appeared later. Morgan's work influenced Engels. Modern anthropology treats both theories as too general: early societies varied widely.

The social contract theory

The State was created by an agreement among individuals living in a state of nature. Hobbes (Leviathan, 1651) described that state as a war of all against all, in which life is 'solitary, poor, nasty, brutish, and short'; men therefore surrender their natural rights to an absolute sovereign in exchange for security. Locke (Two Treatises of Government, 1690) described a state of nature governed by natural law, in which people had rights to life, liberty and property but lacked an impartial judge; they created a limited government holding power on trust, which may be resisted if it betrays that trust. Rousseau (The Social Contract, 1762) began with the words 'Man is born free, and everywhere he is in chains', and argued that a legitimate State rests on a contract by which each person unites with all under the general will, so that in obeying the law he obeys himself. The contract theory is historically fictitious, since no such meeting ever took place, but it remains powerful as a theory of legitimacy: government rests on the consent of the governed.

The evolutionary or historical theory

The accepted view is that the State was neither made by God, nor seized by force alone, nor agreed by contract, nor simply an enlarged family. It evolved gradually over a long period through the combined working of several factors: kinship, religion, force and war, economic needs such as settled agriculture and property, and growing political consciousness. Garner summed up this view by saying that the State is a product of historical growth rather than of any single cause.

5. The Marxist Theory of the State

For Marx and Engels, the State is not a neutral umpire but an instrument of class rule. The Communist Manifesto (1848) called the executive of the modern State 'but a committee for managing the common affairs of the whole bourgeoisie'. Friedrich Engels, in The Origin of the Family, Private Property and the State (1884), building on Morgan, argued that the State has not always existed. It arose when private property split society into classes with irreconcilable interests, as a power apparently standing above society to keep class conflict within bounds, but in fact serving the economically dominant class. Law is part of the superstructure resting on the economic base (see Note 16).

In Anti-Duhring (1878) Engels predicted what would happen after a socialist revolution. Once the proletariat takes over the means of production and classes disappear, the State will have nothing left to do: it is not abolished, it withers away. The government of persons will be replaced by the administration of things. Lenin, in State and Revolution (1917), sharpened the argument. The bourgeois State machine must be smashed, not simply taken over; in its place comes the dictatorship of the proletariat, a transitional State that will itself wither away as communism is achieved. History did not bear this out: the Soviet State grew stronger rather than withering, which critics treat as a decisive refutation of the prediction.

6. The Relation between the State and Law

Which comes first, the State or the law? The answer divides the schools.

The balanced view is that the relation is reciprocal. The State makes and enforces most law, but the State is itself constituted, organised and limited by law: its organs, their powers and their authority exist in and through legal rules. Modern constitutionalism rests on this insight. The rule of law, treated in Note 40, is the demand that the State be subject to the law it makes.

7. The State as a Juristic Person

In law the State is a juristic person: it can own property, make contracts, sue and be sued. Under Art. 300 of the Constitution, the Government of India may sue or be sued by the name of the Union of India, and the government of a State by the name of the State. The State's liability in tort for the acts of its servants was considered in State of Rajasthan v Vidyawati (1962), where the State was held liable for the rash driving of a government jeep, and Kasturi Lal v State of UP (1965), where the Court denied liability because the police were exercising sovereign functions. The sovereign function immunity has since been narrowed, and compensation for violation of fundamental rights is now awarded in public law (Rudul Sah, 1983; Nilabati Behera, 1993). See Note 33 on legal personality.

8. 'The State' under Article 12

Fundamental rights are, in general, enforceable against the State. Art. 12 defines the State to include the Government and Parliament of India, the Government and Legislature of each State, and all local or other authorities within the territory of India or under the control of the Government of India. The meaning of 'other authorities' has been widened step by step as the State began to act through corporations and societies.

9. From Police State to Welfare State

The police State of the nineteenth century confined itself to defence, order and the enforcement of contracts. The welfare State accepts positive duties to secure health, education, work and social security; the Directive Principles require the Indian State to secure a social order in which justice, social, economic and political, informs all institutions (Art. 38). As the State began to act through corporations, the Art. 12 cases extended fundamental rights to follow it. The growth of State power also sharpens the demand for the rule of law (Note 40).

10. Evaluation

No single theory settles the relation of State and law. Austin captures the fact that modern law is mostly made by State organs but cannot explain how the State itself is legally limited. Kelsen's identity thesis is elegant but seems to deny that a State could ever act illegally. Duguit rightly binds the State to something beyond its will, but social solidarity is too vague to serve as a legal test. The Marxist prediction of withering away has not been fulfilled. The Indian Constitution takes a practical course: the State is a legal person created and limited by the Constitution, answerable in its courts, and bound to use its power for the people's welfare.

11. Frequently Asked Questions

Q. What are the elements of the State?
A. Population, territory, government and sovereignty. In international law the Montevideo Convention (1933) lists a permanent population, a defined territory, government and the capacity to enter into relations with other States.

Q. What is Kelsen's view of the State?
A. That the State and the legal order are identical. The State is the legal order personified as a unity; its acts are acts of individuals imputed to that order. There is no State standing behind or above the law.

Q. What is the Marxist theory of the State?
A. That the State arose with private property and class division and is an instrument by which the dominant class rules. Engels predicted that after the abolition of classes the State would wither away; Lenin argued that the bourgeois State must first be smashed and replaced by the dictatorship of the proletariat.

Q. Is a private body ever 'the State' under Art. 12?
A. A body is 'the State' if it is financially, functionally and administratively dominated by or under the control of government (Pradeep Kumar Biswas, 2002). The BCCI was held not to be the State (Zee Telefilms, 2005), though it is subject to Art. 226. Since Kaushal Kishor (2023), some rights under Arts. 19 and 21 can also be enforced against private persons.

See also: Note 12 (Kelsen), Note 16 (Marxist jurisprudence), Note 33 (legal personality), Note 38 (sovereignty), Note 40 (rule of law), Note 45 (fundamental rights), Note 69 (Pound versus Duguit).