02 December 2015


From 'The Nature and Structure of the State' by Hermann Heller (David Dyzenhaus trans) in (1996) 18(3) Cardozo Law Review 1139 to 1216
The question of the "purpose" of the state has been a permanent and fundamental problem of all theories of the state ever since Aristotle opened his Politics with the theory of the purpose of the state and placed this sentence at its head: pasa koinonia agathou tivos heneka sunesteken. It was left to the Romantics to contest for the first time the appropriateness of this question and to maintain that the state "just as the plant and the animal" is self-directed. From that time on, theories have neglected the question of the purpose of the state. They decline to deal with it, alleging that it is a fake problem, or redundant, or unanswerable. And, insofar as the question is recognized as an appropriate one, the theories give answers that are for the most part thoroughly unsatisfactory from a scientific standpoint. In any case, the theory of the state does not find its fundamental problem to be the question of the purpose of the state.
Indeed, the justification for excluding the purposive moment from the concept of the state had to be conceded insofar as the natural law of the Enlightenment proposed an understanding of the state which rationalistically put aside the question of purpose. For it misunderstood the state as the arbitrary creation of individuals, conscious of their own purposes. However, the objection is well taken that it is not associations but only real people who can set subjective purposes. Further, one cannot contest the claim that the state has no unitary purpose in the sense that all its members pursue in it and with it the same purposes. And one must also concede that those who claim that there can be no scientific answer to an inquiry which seeks an objective determination of the concrete political "mission" of a particular state have it right. For this mission, like any psychological purpose, consists in the hardly unitary ideologies of particular groups of people within the state. And this is so even when, in the allegedly objective manner of the contemporary practitioners of geopolitics, the mission is deduced from the geographical situation of the pertinent states. Finally, one must also recognize as inappropriately posed the question which seeks an objective, transcendental "purpose" of the state, which it possesses either in regard to the divine will or to the ultimate vocation of the entire human race. For this question merges into one of the universal, true or right meanings of the state, and thus becomes one about the problem of justifying the state; and that should not be confused with the question of the so-called "purpose of the state."
Once the force of all these objections has been conceded, one should still not fail to see that behind these questions of the purpose of the state is concealed a problem which, once appropriately posed, is not merely significant for the theory of the state but is the most fundamental of all. For even though it is right that only people are in a conscious position to set purposes, the state still, like all human institutions, has an objective social function which never coincides altogether with the subjective purposes of the people who form it. The natural law of the Enlightenment proposed an inference which thenceforth led the natural and social sciences into error. It inferred a phenomenon's inner purposefulness from its creation by a purposively rational will. But science is as little permitted to infer the conscious action of a creator from the inner lawfulness of the natural organism, or to infer from the intrinsic logic of speech its creation by the spirit of the people, as one is barred from explaining the organization of the state by means of a purposively rational interaction, such as a contract between people.
But still the theory of the state can legitimately ask, indeed it must, about the meaning of the state which is expressed in its social function, in its objective social operation. This objective, material meaning of the state should be precisely distinguished from the subjective, psychological meaning. To be sure, the state, like all humanly created cultural phenomena, can also be made the subject of a psychological interpretation. Such an interpretation enquires after the subjectively intended purpose which people set for themselves in a concrete instance or which they commonly tended to set for themselves in most instances. But no road leads from subjective purposes to the objective efficacious unit of the state. And this is so even if, in the cause of psychological generalization, one prefers to comprehend the purpose of the state altogether formally and without differentiation; for example, one follows Jellinek in speaking of a purpose "of preserving individual existence and individual welfare." For such a purpose is neither, as Jellinek even concedes, specifically of the state, and thus not an authentic purpose of the state, nor is it demonstrably the psychological situation of all members of the state.
In truth, the great theorists of the state, particularly Aristotle and Hobbes among their number, did not want, by their theories of the purpose of the state, to give a subjective, psychological explanation but rather, on the contrary, an objective, material one. The institution of the state generates above all homogeneous effects which provide a sensible, objective meaning for the entirety of social life. The interpretation of this objective functional meaning should not be confused with either a psychological interpretation or with the question of what is the right or valid value to be awarded to the state institution.
The effects which the state causally brings about within the totality of society are ascertainable with the same objectivity as the functions of nourishment, reproduction, or defense possessed by the particular organs of animal or plant organisms. There is no contradiction in principle between causality and teleology in the understanding of social reality. The state is not possible without the purposive activity of people within the state. These people set purposes which become causally efficacious for others within the state - the motivators of the others' wills. The reality of the state, which at this point must still be presupposed to be a unit, resides in its operation or function, which, need not, as a purpose, be desired by either all or a single one among those who contribute to it. The only existence of the state is in its effects. "Function is being conceived in activity." The objective operation of the state on people and things is detachable from the physical acts which make up its origin and its objective meaning can therefore be understood without regard to its psychological origins. The immanent function of the state should be understood in terms of its objective operation as something clearly distinct from both the subjective purposes and tasks set by the ideologies of some of its members and from any transcendental meanings to do with its foundation in law.
Like all social functions which come about and are maintained only though socially effective acts of human will, the function of the state is both the product of and an imposition on human will. The function of the state is of necessity given to us by a particular natural and cultural situation. But it is never a mere natural situation which necessitates the function of the state. It is first in a particular cultural situation, namely with the settlement of peoples, that this function becomes a necessity which dominates our activities. This process of settling a geographic area, one bounded by the proximity of other peoples, makes necessary an effective unit for the protection of this area as well as for its eventual expansion. This requirement of a territorial solidarity is established for the external tasks that arise from time to time but is still far from amounting to that function which we have known since the Renaissance as the state. To reach that point requires a much higher level of social division of labor and therefore a certain constancy and concentration of social market relationships and reciprocal dependencies. It is this intensity of an enduring, interactive structure that necessitates the permanent, unitary, territorial organization, intrinsically connected to an area, which, since Machiavelli, we have termed the state. The modem territorial states were unknown to antiquity and to the Middle Ages. An organization comparable to the contemporary political status could formerly develop only in the cities; that is, where markets caused a division of labor and exchange to concentrate itself in a confined area. Thus we find the beginnings of the modem state first in the city where labor and exchange exhibit the highest level of development, namely in the city states of upper Italy.
Hence the function of the state, while territorially determined, becomes necessary only at a particular level, one defined by settlement and a highly developed division of labor. Since this function of the state is a necessity which constrains our imaginings and activities, it precludes us from seeing the state as an invention of free human will. But it does not prevent us in the slightest from recognizing it as the necessary product of human will operating in the given natural and cultural situation. As soon as that degree of social interdependence in a particular territory comes about, a unitary order of social relationships is required and therewith a common order of power, one which must simultaneously assert it- self externally. But this given necessity translates into the social reality of the state only when it is experienced and brought into being as the self-imposed end willed by groups of people living in a particular territory. Where a state power capable of maintaining itself both internally and externally is not wanted, no state can emerge or maintain itself. But wherever that natural and cultural situation exists, and one prefers one's own order of power within a territory to an alien one, there exists the will to form a state. If that will succeeds in organizing social cooperation within a territory as an autonomous force, then we have before us as an actor the supreme power of a territory, a state; and that invests the political activity of the powerholders with a political necessity which is prior to any international law and autonomous of all normative jurisprudence.
Thus, the function of the state consists in the autonomous organization and activation of social cooperation within a territory. Its basis is the historical necessity of a common status vivendi (life situation) for all the antitheses of interest in one all-encompassing geographical area which, so long as there is no world state, is bounded by other similar associations which rule over a territory.
It is of crucial significance to ascertain the immanent social function of the state in all its detail. All theories and concepts of the state and law are senseless if they are not related to the social function of the state. The agnosticism that declares even the appropriate form of the question about the "purpose" of the state to be unanswerable ends eventually with the bleak opinion that the political association should be defined exclusively in terms of its medium - its coerciveness. This theory, more accurately the countless theories which maintain9 that, as a matter of conceptual necessity, the "purpose" of the state is power, are absolutely empty rather than simply false. For power develops all human institutions, and unless one ascertains a social function for the specific power of the state, one cannot distinguish it from either a robber band, a coal cartel, or a bowling club.
B. Distinguishing the Political from other Social Forms
We can get a concept of the political only from the social function which the political exercises within the entirety of social life. The singularity of the political distinguishes itself from other social functions only in that, on the one hand, politics is an efficacious structure which comes into being and maintains itself in accordance with laws which are relatively peculiar to it, and, on the other hand, because politics, though but a part of social life, has a certain significance for the whole.
The concept of the political is much more encompassing than that of the state. There were political activities and forms of activity before there were states, just as today there are still political associations within and between states. However, common usage has ultimately widened immeasurably the ideas of politics and the political. One speaks of a politics of the church, the military, business, unions, and so on, and one does not have in mind thereby only the state and other political institutions, but also the private as the bearer of this politics. One cannot determine the specific function of the political with such an amorphous concept. After all, these are all forms of "politics" since they all develop and apply organized social power. That is, in this situation power manifests itself and is maintained by a cooperation between people, which orientates itself to a common order of rules, and in this situation particular people take care of the establishment and security of this order as well as of the unitary activation of the power accumulated in it. But the power, organized and activated by particular organs, such as a church, a trust, or even a military organization, is not what we call political.
A clearer basic concept will be achieved only through relating the political to the polis and to its most developed form, the state. Therefore, the independent organization and activation of social cooperation within a territory is political in an exemplary sense. Once again, we should emphasize that it is by no means the case that the objective political function always has to correspond with a subjective intention of those who contributed to it. The subjective intention with which someone does military service, pays taxes, and so on, is not decisive. Like any social power, the political is a power which is also a structure of cause and effect; it is mainly a matter of objective operation and not, at least not solely, one of subjective will and conviction. Hence it may well be the case that the leading politician is intent on economic gain; but if he makes use of politics to achieve these ends, then he must subordinate his actions to the laws peculiar to politics, or he will fail economically as well as politically.
But not everything the state does is to be regarded as political activity. The understanding of a social power as political is not something that persists for all time. It depends on the social circumstances, namely on the greater or smaller degree of social and political homogeneity of the people of the state as well as on the concrete form of the state. In general, one designates as political only that power in states which is directive and not executive. As a rule, one regards as holders of political power only those who, on the basis of their autonomous decisions, have the capacity (or who strive to have it) to bring about a material change, internal or external, in the distribution of power within the state. Thus, the subordinate organs of the state whose executive activity follows firm prescriptions are not ordinarily counted as political. Also, large parts of the social politics and cultural activity of the state are often not designated as political. To be sure, all social relationships are eventually politicized wherever strong political tensions exist. Then, even constructing a water pipe, a factory, or a hospital, not to mention establishing a school, are evaluated as political acts. For all these acts have a relationship, even if it is a very tenuous one, to the political function. But in calm times, when the basic organizational principles of social cooperation within a territory are not in doubt, there is no awareness of this. On the other hand, in the system of division of powers in the Rechtsstaat, only that state activity which is directive properly counts as political and not, or at least not in the same degree, the executive activity done on the basis of these directions. Hence, only the government and the legislature count as intrinsically political, and not the administration and the judiciary. The "total" state of the modern dictator, who politicizes all social relationships, must use the judiciary as well as the administration as direct instruments of power.
Admittedly, politics and state are conceptually and in reality always reciprocally related, but they should not be identified with each other. For it is not the state alone which develops genuine political power, but also political associations within and between states, such as parties, alliances, the League of Nations, and also such associations whose function is in itself not at all political, such as churches and employer and worker associations. Hence, not every power which is politically effective is a state power. But what determines our formation of the concept is that each, by virtue of its social function, desires to become such. That is to say, each effective political power desires to organize and activate social cooperation within a territory in accordance with its intentions. But each political power, even those that exist between states, can eventually achieve this end only through transforming itself into a state power. For the state power is distinguished from all other forms of political power in that at its disposal is the legal order, which is established and guaranteed by the organs of state. The state manifests the political optimum, namely, the political organization which, in its own territory, is generally the most powerful, precise, and practical. Hence, it is evident that each political force must, by virtue of its immanent social function, strive not to conquer the entire power of the state. Rather it is clear that it must strive to make its way within the state through its components. In this sense, politics can be defined as the art of "transforming social tendencies into legal form."
In general, each act of political power has its own recognizable effects, even if microscopic, on social life-that of the church, the military, education, the art world, and so on. The converse is also the case. Politics affects all other social functions and is, on its part, affected by them all. And for this very reason, the concept of the political can be grasped only through an objective, material interpretation of the entire social order. Every psychological understanding must presuppose this objective meaning of the political function if it does not want to remain empty. Thus, it must of necessity start with the methodical hypothesis that in every meaning-conferring act is "at once contained all the basic forms of meaning-conferring acts; the totality of spirit rules in each act."" Hence, a concrete act of social reality (which is everywhere in a state of flux) always gets its political character only in accordance with its dominant qualities and not through its pure ones.
Recently, a view has been shaped under the influence of vital- istic philosophy which is antithetical to the interpretation of the objective social function of the political represented here. It is that all politics amounts to nothing more in principle than an irrational and senseless struggle for power. Sorel, Pareto, and Oswald Spengler are in complete agreement that the lawless basic law of all politics consists in the exercise of power without any determinable content. The idea of this politics is best described by the characteristic which a pro-fascist theoretician of fascist politics allowed to be shared: "To want activity for the sake of activity, a kind of l'art pour l'art on the political terrain.” The concept of the political as it is understood by Carl Schmitt, the influential advocate of German fascism, comes out the same way. It is obvious that he must remain stuck in a contentless psychologism, since he claims that the distinction between friend and enemy is properly distinctive of politics, where the enemy is supposed to be the one who, in the case of conflict, is the alien who should be exterminated. Schmitt can only exclude, for example, an intense erotic or any other friend-enemy distinction, by immediately, though incomprehensibly, making the state into the bearer of every such distinction. The end result is that we are the recipients of a hardly original teaching that the distinctions of the state are political distinctions. Besides the fact that the creation and maintenance of the state, and therewith the entirety of internal politics, escapes the friend-enemy distinction with its bellicose intent, nothing besides the polemos (war) remains of the entire external politics of polls, and it is from the former alone that Schmitt openly deduces his concept of politics. Even should one want to define politics exclusively as the continuation of war, it is still the case that its hallmark clearly remains the employment of other means; and it is still the case that the greatest part of all politics consists in the efforts to avoid the existential conflict of friend and enemy. Schmitt's contentless friend-enemy activism, which has not without justification been subjected to a psychoanalytical treatment, is in the end the hallmark of any scuffle. For that very reason it leads not to a specific hallmark of the political, but at the most to the trivial observation that all life is a struggle. Of course, one should not overlook the irrational urge towards expanding power, which, particularly in the era of imperialism, is characteristic of many, though by no means all, political powers. But this urge is not an adequate basis -for arriving at a concept of the political because it is senseless in a way not confined to the political power which is characteristic in capitalism, but even more for capitalism's characteristic economic power.
However, it would be an unfulfillable task to set out microscopically all the effects which affect the political function and which it brings about. We must therefore confine ourselves to a macroscopic approach, one which highlights the structure of the political and its distinction from the social functions which are otherwise most important for our situation.
Besides the function of religion and the church and the legal function (which we will examine separately), all other intellectual powers also have the strongest political effects and are for their part fundamentally influenced by politics. Every political power is the more stable the more it succeeds in bringing to recognition the obligatory nature of its own orders of ideas and norms-of the customary, ethical, as well as legal rules of which it approves and which are foundational of it. Its political prestige is enhanced through the acceptance of the culture as an exemplary form of life which it would otherwise represent as political. Circumstances permitting, even the forms of speech, of literature, of music and educational art, and of science and technology, are capable of working effectively to win political power. Hence, the contemporary state places great weight on both internal cultural politics and external cultural propaganda. No state can manage without winning over the intellectual powers to its ends. It is true that the Rechtsstaat, with its division of powers, imposes on itself a particular restraint in regard to the intellectual powers, since it constitutionally guarantees a free development of art, science, and church. But even it can manage this restraint only so long as the intellectual cleavages within the people of the state do not endanger the unit of social cooperation within a territory and thereby its necessary social function. The modem dictators treat all intellect entirely as a mere function of politics. They want to create political solidarity through using direct coercion to produce an intellectual uniformity and thereby an allegedly new culture.
Here, as in countless other - in particular academic-pronouncements of the present, it is clear how much the ability has withered to make distinctions between the historical and systematic autonomy of the intellectual and the political function. Yet the superstition of a preestablished harmony of intellectual and political power fills the majority of our theoreticians and practitioners of politics, despite the fact that history from the Greeks and the Romans until the Germans and Italians of the eighteenth and nineteenth centuries proves the exact opposite. It is only an intellectual and social situation of intellectual "disillusionment" and anarchy that makes possible the explanation of how the autonomous laws of political operations got confused with the laws of intellectual values which were, whether transitory or more permanent, of no social efficacy. The organization and activation of social cooperation within a territory can produce nothing more than certain organizational presuppositions of an intellectual culture. Conversely, it is in no way necessarily the case that a Plato and a Praxiteles, a Shakespeare and a Goethe, are politically effective. That their reputation is, circumstances permitting, effective in gaining political power is, as a worthy poet put it, for the most part the embodiment of the misunderstandings which with time have been heaped on their great names.
The relationship of the political function to physical, that is, military force, is a problem of the utmost importance for practice. We have characterized the military as, technically speaking, the most thoroughgoing way of forming the power to rule. This fact often misleads a technically one-track way of thought to regard it as the most thoroughgoing form of the political function. But in contrast to political power, the military is merely a technical power, which has its purpose determined and gets its legitimation first of all from the state. It is above all only by virtue of being a part of the state power that it has a social function. A military power which does not subordinate itself to the task of organizing and activating the social cooperation in an area is nothing more than a robber band. But military force is an irreplaceable existential condition of any state power, because it guarantees the political function both internally and externally. However, physical force is always only the ultima ratio (ultimate basis) of political power, for political power needs force only exceptionally and could not for even a moment maintain itself exclusively by force. But one should remember that it is not only the application of armed force but also its threat which guarantees the existence of political power.