Duncan Kelly
A century has passed since the publication in Germany of a now famous essay on the rights of man by the Heidelberg professor of public law, Georg Jellinek.1 Over the course of that century, although a "rights revolution" has undoubtedly taken place, numerous practical problems remain in trying to enforce the basic proposition that "all human beings are born free and equal in dignity and rights."2 Such problems have led one recent commentator to suggest that perhaps the only meaningful defense of human rights is one based on "moral reciprocity" and secular humanism because any attempts to prioritize human rights on either religious grounds, for example, or that of intrinsic human value, are doomed to failure.3
However, the content and wording of the United Nations Universal Declaration of Human Rights remains rhetorically dependent upon earlier canonical discussions of the rights of man found in the American Declaration of Independence and the French Déclaration des droits de l'homme et du Citoyen. Moreover, in these earlier declarations, a central interpretative question concerned precisely the religious or the natural origins of individual rights, and this issue was absolutely central to Jellinek's argument. It was most notably explored in the debate that followed the publication of his essay in France, thanks to the extended reply it elicited from Émile Boutmy, a professor of political science in Paris. However, although this debate is relatively well known, it tells us little of the actual underpinnings of Jellinek's argument, which is unfortunate because his central thesis requires an awareness of the broader legal-historical character of his writings. Indeed, as Wolfgang Schmale has suggested, Jellinek's discussion of the rights of man built important foundations for the arguments he elaborated most fully in the Allgemeine Staatslehre.4 Such arguments were, in turn, necessarily related to the wider character of Wilhelmine Staatsrechtslehre. And the fact that the debate between Boutmy and Jellinek actually took place after the publication of his most celebrated work allows us to view it in light of Jellinek's most developed intellectual position, something Jellinek himself alluded to in the second German edition of the essay.5
This article is, therefore, an attempt to broaden mainstream understandings of Jellinek's discussion of the rights of man by evaluating this prior interpretative proposition in some detail. I begin with an account of the debate between Jellinek and Boutmy and then explore some of the implications of that debate for Jellinek's intellectual history of the development of individual rights in European and American thought. Then, building on Jellinek's theory of the importance of America for the constitutionalizing of individual rights, I examine the actual impact of American constitutionalism in nineteenth-century German political and legal inquiry. The discussion illustrates the ideological uses made of the American example in legitimating a particular vision of national identity in Germany. However, Jellinek's own argument is strongly opposed to the idea of a distinctly German idea of freedom with independent sources and traditions.6 It is instead premised upon the interpretative unity of American and European legal culture in the development of ideas about individual rights.7 For although many before him had compared the similarities between American and French constitutional developments, none had sought to so fully investigate the legal prehistory of the American "origin" of the French Déclaration.
This article locates Jellinek's assessment of the nature of the state within the context of the dominant German Staatsrechtslehre of his time. I explore in particular his development of key ideas from Bluntschli, Gerber, and Laband and try to show the implications of his "two-sided" state theory in terms of both national and international law. The conclusion illustrates the relevance of this reading of Jellinek to recent debates about the American Declaration of Independence and international law, as well as reaffirming the importance of Jellinek's Staatsrechtslehre for his account of the rights of man. It seems quite clear that the one cannot be understood without the other. Indeed, Jellinek's work is perhaps best seen as an attempted reconciliation and synthesis of predominant state-legal theoretical discourses in nineteenth-century German thought, underpinned by a general theory of the historical development of the state and the nature of human association. Such a synthesis pointed the way forward to numerous debates about the status of legal positivism and the relationship between law and the state that were to become so crucial in twentieth-century Germany.8
I. Georg Jellinek and Émile Boutmy on the Rights of Man
One of the most provocative claims made by Georg Jellinek in his short monograph was that the French Déclaration of 1789 stood opposed to the principles of Rousseau's proclamations in Du Contrat Social. Externally, for a German professor (admittedly of Austrian descent) to deny this relatively commonplace understanding was, in fact, to stand outside general German political criticisms of contemporary France. As Mark Hewitson has suggested, Wilhelmine depictions of the French Third Republic often used recent French history as evidence of the weaknesses of parliamentary government based on equality, as opposed to a Rechtsstaat based on individual liberty.9 Under the Rechtsstaat model, according to a broad swath of ideologically diverse nineteenth-century commentators, individual freedom and liberty could be properly maintained because of a rigid separation of the state from society. In France, however, under a democratic system a "merger of competencies" had clearly occurred, with no pertinent distinction made between the legislature and the executive.10
The result of such cross-national comparison was the presentation of a partial and critical view of (French) democracy, which could then be used to legitimate a positive project of German nation building, one that avowedly opposed both monarchical dictatorship and democratic degeneration. Lawyers and academics in particular played a central role in this debate, sharpening these national distinctions and stereotypes into antithetical abstractions; put simply, prior political assumptions seemed to justify a theoretical opposition between German constitutionalism and French parliamentarism. Indeed, the preponderant impact of historicism on German intellectual life from the second half of the nineteenth century onward located such interpretations in broader developmental laws or schemas of socio-political development ranging from antiquity to the present, which were themselves closely related to religious and nationalist political ideas.11 Jellinek nevertheless refrained from explicit criticism of the Revolution in particular and of contemporary French political culture in general, instead concentrating on Rousseau. In so doing, he allowed himself to make a more specific point about the ideological origins of the rights of man.
Furthermore, though taking part in the debates about the relevance of parliamentarism in Germany—something he thought inevitable, if dangerously incompatible with contemporary institutions—Jellinek's position was much more subtle than many of his colleagues who clearly saw in Rousseau the central intellectual influence on the Revolution.12 Jellinek acknowledged Rousseau's rhetorical influence upon the Déclaration but argued that there was no rigorous connection between them.13 This influence "brought out nothing essentially new, or unknown to the American stipulations."14 In fact, Jellinek argued that Rousseau's vision of reconciling individual and community through the idea of the General Will rendered it inconceivable to think of him as a source for any declaration purporting to uphold individual rights at all.15 Given the nature of this transfer, and in what has long been a standard criticism of Rousseau's political theory, Jellinek suggested that the search for the origins of the individual rights of man proclaimed in the Déclaration should be sought elsewhere. His solution to the question of origins was to suggest that in several of the American bills of rights, central sources of the later French document could be found.
Hence, a large portion of his small book was taken up with explicit comparisons of various paragraphs from particular bills of rights, those of Virginia especially, with the French Déclaration.16 Jellinek then attempted to trace the prior origins of the American Bill of Rights, which would not have been surprising to his French readers at first blush. For Jellinek not only cited the mainstream James Bryce on The American Commonwealth, alongside Boutmy's Études de droit constitutionnel, as a source for his argument about American priority.17 He also distinguished the American Declaration from the Glorious Revolution in England and its Bill of Rights. He argued that there was a "deep cleft" separating the English Bill of Rights from the American. This was because the American document was based on a (albeit flexibly interpreted) theory of natural rights and international law, whereas the English common law was based on tradition and custom, and those "statutes are far removed from any purpose to recognise general rights of man."18 English law and its conception of individual rights was based on inherited, rather than natural right, granted by virtue of the exceptional character of English development.
However, Jellinek continued, "when nevertheless all the stipulations of the Bill of Rights are therein designated as rights and liberties of the English people, it is through the belief that restriction of the crown is at the same time right of the people."19 And then Jellinek made the controversial suggestion that "this view grew directly out of the mediaeval conception of the Teutonic state," which in its English inflection offered a "two-sided" interpretation of the law, referring to the rights and responsibilities of both the prince and the people.20 The status of these individual rights remained subject to a constant series of interpretations and reinterpretations, but their historically rooted character could never permit the creation of new rights ex hypothesi; "these are not rights of the individual, but duties of government."21 Moreover, the Teutonic origins of the English conception of right stood opposed to divine-right and quasi-absolutist rule, where "in spite of the nominal omnipotence of the state a limit which it shall not overstep is specifically demanded and recognized in the most fundamental laws."22
Jellinek here clearly alluded to issues specific to contemporary German academic life. He suggested that the dominant Staatspositivismus of Carl Friedrich von Gerber and Paul Laband in current theories of public law distilled a theory of individual rights as concessions from a state that chose to limit itself through law. Under such a conception, "any restraint of the person can only come about through legal authorization."23 This clearly illustrates the need to contextualize Jellinek's account, so as to explain the import of those ideas that suggested "the rights of liberty are nothing but duties of the government."24 Similar historical interpretations were prevalent in Victorian England, too, most notably in E. A. Freeman's discussion of the Teutonic character of original English liberties.25 Yet, in terms of more recent debates about the character of the sources of discussion over the Bill(s) of Rights in America, the profound importance he attached to the ideas drawn from Blackstone and Locke, in England alone and not America, is crucial.26 Of most interest to Jellinek in this regard was the fact that this question of "legal authorization" actually "sprang up in England" from "existing conditions after the conception of the public rights of the individual as natural rights, which was based on Locke and Blackstone, had lost its power."27
Contemporary scholarship remains divided over the extent to which figures like Blackstone and Locke were pivotal to discussions about the rights of man in America.28 As I have suggested, Jellinek was clearly not convinced of Locke's impact.29 Yet the question is particularly important given the status of the contemporary arguments put forward by many participants in the struggle against the king, to the effect that once George III had begun to tax the colonists without parliamentary representation, the population had effectively returned to a state of nature. Under such a condition, of course, the only rights that were available were natural rights, inalienable because God given. Correlatively, legitimate political power was understood in (Blackstonian) terms of the "omnicompetence" of the legislature.30 But this was not all, for although there were some similarities between the American Declaration and English natural rights discourses, the source of the universal character of the American discussions had once more to be sought elsewhere. The origins this time were to be found, according to Jellinek, in the development of individual religious liberty out of the Reformation. Jellinek began by discussing the Levellers' proposed constitution of 1647, arguing that this was the first time that freedom of conscience had been proposed as formal constitutional law. The American experience was, however, exceptional in bringing such ideas to practical fruition, so that although beginning with the Pilgrim Fathers, it nevertheless built on and amended the English experience:
In the opposition in which they stood to the religious conditions in England, the Puritans, although themselves little inclined to toleration, proceeded invariably upon the idea that their state had first of all to realize religious liberty, which was for them the free exercise of their own religious convictions. The idea that state and government rested upon a compact—so significant for the development of the American conceptions of individual liberty—was strengthened by the force of historical circumstances. A handful of men went forth to found new communities.31
His conclusion was that the "principles of religious liberty to a greater or less extent acquired constitutional recognition in America," where the notion of rights was inherently attached to the individual, rather than resting in the wider rights of particular communities. The rights of communities were, nevertheless, absolutely crucial in the debates about the Bill of Rights in England, and Jellinek traced their origins back to the struggles for freedom of conscience in the Reformation.32 Therefore, the search for limits to the right of the state or civitas—alongside a correlate popular right to resistance—was, Jellinek suggested, an idea first found in seventeenth-century England. However, as he had already expressed in other words, these "doctrines of natural law attached themselves to the old [Teutonic] conceptions of right, which had never died, and brought them out in new form."33 The novelty of the American bills of rights, then, lay in their synthesis of religious freedom and constitutional liberty guaranteed by the state.
Aghast at Jellinek's proposal concerning the mixed Anglo-Saxon and quasi-Teutonic historical roots of individual liberty, Émile Boutmy, professor of political science at the École Libre des Sciences Politiques, was moved to write an extended reply to the French translation of the work in 1902. The debate between Jellinek and Boutmy is probably the best known aspect of Jellinek's work, mainly due to the labors of historians of modern France. However, the confrontation took place some seven years after the original publication of Jellinek's essay and tells us little of the wider context informing Jellinek's arguments, even though his reply to Boutmy builds on work he had undertaken since first writing the essay. If anything, though, the temporal disjunction illustrates the overall continuity between his account of the rights of man and the development of his broader political and legal thought, and it is this that needs to be explored in the context of Boutmy's criticisms.
Brusquely, Boutmy decried Jellinek's understanding of Rousseau's idea of the general will and offered, as have many scholars since, a view of Rousseau's reconciliation of man and citizen that stressed the positive aspects of communal freedom found in his writings. In fact, wrote Boutmy, there was no contradiction in the fact that although Rousseau had not actually argued for a declaration of rights himself, his influence on the Déclaration was clear enough to require little elaboration. Similarly, the French idea of liberty was noticeably different from any Anglo-Saxon or Teutonic concern with limiting the power of rulers. In fact, one can speculate that what Boutmy saw in Jellinek was a critique of the Déclaration similar to that outlined by conservatives in France after 1789, which might help to explain the tenor of his response.34
Furthermore, although he shared with Jellinek an understanding of the natural rights heritage that clearly informed the American Declaration of Independence, Boutmy pointed out in more general terms the universalism of the French Déclaration, which was, he suggested, illustrative of the "rationalist" outlook of the eighteenth century.35 Put crudely, the French were simply more in tune with the mood of the century—more an der Zeit, to borrow Hegel's expression—than the Americans, whose founding declaration was still beholden to the argumentative "verbiage" of their former colonial masters.36
II. Jellinek and the Intellectual Origins of Individual Rights
Jellinek began his reply to Boutmy by arguing in professorial coda, insisting that rather than explicitly seeking a Germanic source for the French Déclaration, he was instead a seeker after truth alone. Similarly, he stated with regard to his focus on the Reformation that his principal subject had been Calvin, the Genevan Protestant, as opposed to Martin Luther.37 Jellinek relied on the idea that the sixteenth century saw the development of a specific and novel Calvinist theory of revolution, as opposed to a modification of already extant political ideas in an instance of ideological re-description, an argument forcibly challenged in recent years.38 He did not dwell on this point though. Returning to the topic of Rousseau and his influence, Jellinek argued that the Contrat Social had appeared in 1762. Therefore, the key question was why were the French so tardy in assimilating and taking up Rousseau's teachings in the form of a declaration of rights?
A central reason, he asserted once again, was that although Rousseau and the French philosophes were clearly "apostles of liberty in general," they had little to say about particular individual liberties, and this was the rub.39 Indeed, taking issue with Boutmy's valedictory celebration of Article 10 of the Déclaration, concerning freedom of conscience, Jellinek proposed that the French discussion was in no way different than the American. By tying natural rights to the establishment of a democratic public order underpinned by the rule of law, there was no clear water between the two documents on the issue of individual liberty. Thus, Jellinek's attention returned to the origins of individualism as it related to the juridical foundations of the rights of man.40 Such juridical ideas he then traced through the development of English law in particular. Focusing on natural rights in the development of English political ideas, however, renders more complex the simplistic notion of influence that Jellinek worked with (for which he was rightly criticized by Boutmy, though it is a procedure he defends in his reply).41 This is because the relationship between the natural rights arguments, drawn from Locke and Blackstone, and the subjective rights proclaimed and defended in the American Declaration of Independence, are more porous and fine-grained than Jellinek's presentation suggested, a fact well illustrated in the transformation of American law during the Revolution.42
It is clear that Blackstone's Commentaries were central to Jellinek's interpretation of English law and the "idea of the personal rights of the individual."43 And Blackstone explicitly tied the discussion of natural law to the divine foundations of justice within individuals, so that the "laws of good and evil" by which the Creator lived represented the boundaries of justice in the lives of ordinary individuals. Therefore, and in a standard trope of the discourse of natural law, the "happiness of each individual" was dependent upon the proper observation of these natural laws of justice.44 However, Blackstone followed a Hobbesian argument by suggesting that individuals with their particular wills, although constrained by the natural laws of justice, could only form a meaningful political community by transforming themselves from a multitude into the subjects of a sovereign body, the single body of the Commonwealth.45 His Commentaries also were similarly based upon the distinction of the Corpus Iuris Civilis, simplified and interpolated in Justinian's Digest, to the effect that public law was concerned with the relationship between freemen and slaves and underpinned by the tripartite distinction (amended from Gaius's Institutes) between persons, actions, and things.46 This element of Roman law ties in with classical discussions of natural law.47
Indeed, in the canonical doctrines of natural law, such as those expounded by Grotius and by Hobbes, some form of moral imperative, elemental to the human condition, underpins the idea of natural (and for Grotius and Hobbes, subjective) rights. As part of their reaction to moral skepticism, these celebrated thinkers described natural rights as innate features of human nature. Yet, civil or political rights only applied in the Commonwealth and were clearly seen as duties (indeed obligations) that were nonetheless based on individual natural right, or liberty.48 Natural rights alone were therefore incapable of providing the foundation of morality, for if individuals were to live together peacefully within a community, then civil rights under a commonwealth entailed obligations to the sovereign.49 Pufendorf's account of a naturally human socialitas developed this idea in a slightly different direction. According to his argument, prescriptive laws governed the social world, and the source of these laws was the divine legislator. Correlatively, because the central fact of human nature is a desire for self-preservation, the natural law that followed from this was the requirement of men to be sociable. This was underpinned by a particular view of the benefits of social life, the cultura animi that has developed thanks to the "education of reason" in the historical progression of mankind. Pufendorf's arguments thereby represent what Ian Hunter has recently termed a "detranscendentalizing of ethics and politics" and also point the way toward the "four-stages" theory later made famous in the Scottish Enlightenment.50
Moreover, such accounts themselves—as Blackstone's own work would later show—relied on the idea of a tacit or consensual contract, itself another crucial legacy of Roman civil law, in order to effectively conjoin notions of rights and duties in a partnership (Societas).51 The importance of the preceding argument is that it disputes Jellinek's interpretation of the marginal impact of Blackstone's Commentaries, and indeed Locke's Two Treatises on Government—which developed numerous themes from these natural law traditions—on American political thought.52 For Locke's account of natural rights, when linked to the predominant versions of Scottish moral philosophy actually taught to students in eighteenth-century America, was surely instrumental in the development of a modern republican ideology of freedom under the law in a civil government. In fact, according to Haakonssen, the interrelationship was "not only no hindrance to republican politics; its notion of the duty to virtue provided more of a philosophical foundation for the latter than it had had before."53 Thus, although the question of the "influence" of these doctrines themselves specifically on American rights talk was somewhat misjudged by Jellinek, his own sense of the natural law origins of human rights, exemplified in the American Bill of Rights in principle, would nevertheless seem to rest on solid foundations. Boutmy agreed, but he denied the relevance of such reasoning in explaining the character of the French Déclaration in the first place.
In this regard, it is intriguing to note the important ways in which the concept of "fundamental law," closely related to natural rights doctrines and critical to The Federalist, had developed by the time of the American founding. "By the early seventeenth century," fundamental law was "the standard term for any laws, rights, privileges, or customs that writers thought of special importance for the well-being of a community." It remained, largely, the "foundation" or "edifice" upon which other particular laws were built.54 In a provocative argument, Martyn Thompson has even suggested that the "concept of fundamental law which emerges from the pages of the Federalist Papers (1787–88) is much closer to Rousseau's than to any of those that had appeared before."55 This adds an interesting twist to Jellinek's argument for two reasons.
First, historians of France have noted the importance of both the rhetoric and the substance of Rousseau's arguments in the struggles—linguistic and political—surrounding the drafting of the Déclaration, arguments that go beyond the concern with "general liberty" that Jellinek perceived in Rousseau but not in the document itself.56 Correlatively, historians of political thought have traced the transformation in the languages of fundamental law from its vague and yet all-encompassing origins as the very foundation of the social world, to its use in recognizably modern positive law pronouncements based on principles of popular sovereignty. Combining these accounts produces something like a reconciliation of the arguments of both Jellinek and Boutmy. The result of this would be to suggest that one can indeed trace the influence of Rousseau on the French Déclaration, contra Jellinek, for example in the interpretations of the Abbé Sieyès, although the fact that Sieyès's account of representation was so critical of Rousseau renders the argument ambivalent.57
Second, one might also suggest that an important way of understanding this impact is to locate Rousseau's arguments in terms of his own interpretation of the idea of natural law, contra Boutmy's presentation, given Rousseau's persistent interest in the writings of Pufendorf and Hobbes. Not only did this interest inform his famous criticisms of Hobbes's social contract, but it also accounted for his challenge to the Hobbesian discussion of the capacity of the sovereign to represent the artificial person of the state, and also upon the consequent possibilities of international peace between Commonwealths.58 An answer to the question of why Jellinek focused on natural rights and the religiously inspired individualism in the formulation of the French Déclaration, and its origins in the American Bill of Rights, appears in a consideration of Jellinek's own context.
Two elements are of particular importance here. First, by locating his interpretation of the American Bill of Rights in terms of the actual impact of the American Constitution in nineteenth-century Germany, we can gauge the importance attached to a search for the origins of rights in the recently formed German nation-state. Second, Jellinek's own "two-sided" theory of the state, developed out of a broad German tradition of Staatsrechtslehre, or state-legal theory, offers another way of interpreting his account of the rights of man partly understood as particular "concessions" made to the individual by a state constrained by law. This side of the equation relates most closely to the older Teutonic conception of right, which he is equally keen to discuss in the essay on the rights of man.
III. American Constitutionalism in Nineteenth-Century Germany
As Diethelm Klippel has suggested, "any impulses for modernizing German law in the [early] nineteenth century came from the natural law school and legal philosophy, from French law, or from the historical school of law studying Roman law—certainly not from the [Prussian] Allgemeines Landrecht" of 1794.59 The basis for his claim is the assertion that the general movement toward legal codification did not, in fact, accord with the broader transition in German legal thought toward the beginning of the nineteenth century. This was a movement away from "enlightened absolutism" and toward a broadly "liberal" political theory of individual liberty and social equality, generally speaking, of a movement away from cameralism toward individualism. The traditional focus on promoting the happiness [Glückseligkeit] of citizens as the principal purpose of the state [Staatszweck] did not disappear but was instead modified into a concern with the multifarious character of individual needs.60 Rather than actively pursuing policies designed to show the ability of the ruler or prince to support the common good, the state's purpose was redefined and delimited according to the idea that there exists an inviolable sphere of individual liberty into which it should not penetrate.
Yet this Humboldtian variation on the limits to state action did not drastically curtail numerous practical aspects of state policy or regulation.61Polizeiwissenschaft, to use the older term, continued to be important, and the centrality of Polizei to the "formation" of the modern bureaucratic state has often been noted as the language of administrative cameralism did shift away from the "common good" toward a more tightly focused concern with administrative procedure.62 Classically, according to Johann Jakob Moser, the "powers of police" were "those rights and duties, and the institutions deriving from them, whose purpose is to bring and maintain order in the political behaviour of subjects in everyday life, and to further their temporal weal."63 Given this broad definition, it is perhaps unsurprising that the elastic character of Gute Policey, so central to the ancien régime, remained in a newly veiled form. The idea of Police concerned the provision of public welfare, population control, and statistical and demographic information gathering, as well as pursuing a wide sponsorship of projects in the arts.64
German political-economic discourse nevertheless remained divided over the extent to which the rights or freedoms were to be understood as attributes of the Bürger, or within the purview of the state, with writers like Justi and Moser traditionally focusing on the extent to which rights were "functions" of political rule.65 However, "in the view of liberal theorists the security, prosperity and morality achieved even by indirect means should not be imposed by force." Indeed, "only under these conditions could the expanded liberal concept of the purpose of the state be reconciled with the foundations of liberal political theory."66 One important basis for the development of such thinking in early nineteenth-century Germany, which built on the idea of the natural rights of the individual, was the debate about the nature of the American Constitution.
German translations of the Declaration of Independence appeared almost immediately, and the best and most idiomatic translations came from the United States itself. German newspaper editors in Philadelphia had for ten years reported on the struggles of the colonists with the British Crown, and they were quickly able to produce an authentic translation steeped in the linguistic conventions of the moment, focusing on the division of powers, natural rights, and political legitimacy. Their impact in Germany, however, was slight. They would not be studied until the revolutions of 1848, and then only minimally.67 A crucial distinction can be drawn here between the Declaration of Independence and the actual Constitution, drafted a decade after the main challenge to the English Crown, for the latter had a much more profound impact.
As Adams argues, "those liberals, who dominated the Frankfurt Parliament in 1848/1849, were more interested in the federal power-sharing arrangements of the Constitution of the United States than in the uncompromising proclamation of popular sovereignty in 1776," but this was also related to issues of nationhood.68 Clearly, most writers of any note on this subject supported a constitutional monarchy over any sort of republican regime (though republican language intermingled with early German liberalism), and German interest in America was largely academic from the defeat of the liberal revolutionaries until the outbreak of the First World War.69 Yet, as Dippel notes, the constitutional monarchy introduced in 1871 brought about renewed interest in things American. This was not only because it offered a negative counter-illustration to a more fulsome Germanic constitutionalism, but, as Jellinek suggested, it also highlighted the lack of discussion of constitutional rights in German political debate before the Frankfurt Parliament of 1848.70 The undeniable attraction of the United States for the many Germans who emigrated there after 1848 provided an important context for rethinking the foundations of American constitutionalism. And in so doing, it became clear to writers like Jellinek that the American Declaration of Independence, the Bill of Rights, and latterly the American Constitution had an important impact on the French Déclaration, which had then been crucial to the development of constitutionalism in the individual German states.71 Just as important, they recognized that this represented a particular type of nation-building project, one that the German nation could define itself in contrast to.72
The scale of the change may be gauged in comparing the positive view of American federal government put forward in the 1846 article on federation [Bund] in the liberal Staats-Lexiconof Rotteck and Welcker with the general trajectory of German political and legal thought after 1848.73 The latter tended to be much more focused on assessing the aims and achievements of German national developments, as opposed to examining what could be learned from the American Declaration of Independence with its support for federal and presidential government. In this sense, reflection on the American case as an example of state building provided a counter-factual case for German reflections on nation building. But these reflections, of course, equally required a particular and positive vision of nationhood that could reconcile both federal and "national"—even more broadly, kleindeutsch and großdeutsch—visions of the unified polity in a federal structure of states.74
The differences in approach show how slight the actual impact of the American experience was upon the unified German Reich.75 The American (and French) path was rejected in Germany, though not because of some inherently antidemocratic tendencies that fostered a discrete deutscher Sonderweg. Rather, historians and academics of the Wilhelmine era—and here Jellinek was one of the major figures—were able to use the American Constitution, much as the French experience since the Revolution had been used, in order to promote a particular vision of national identity. This identity, it was suggested, was based on a different conception of constitutional liberty than those states (like France and America) whose political ethos was underpinned by "equality."76
Wolfgang Schmale has pointed to the crucial importance of religious differences that structured opposing "constitutional mentalities" in early Franco-German responses to the French revolution. He has also noted the numerous constitutional discussions of the French Revolution of which neither Jellinek nor Boutmy were aware.77 Similarly, the legacy of the Napoleonic invasions and the impact of the code civil also affected the reception of French political and legal discourse in the German lands.78
Jellinek nevertheless interpreted nationalist claims of German particularity in terms of the discipline of public law in which he was principally involved. The part he played can only be understood against the background of the development of that discipline in contemporary Germany. By examining this tradition of Staatsrechtslehre, we can more easily appreciate his argument about the nature of the state, and against this background the particular import of Jellinek's account of the American Declaration of Independence becomes more easily understandable. For if rights are best understood juridically as concessions from the state—as Jellinek's general state theory suggested—then the relationship between nation building and popular sovereignty becomes necessarily crucial to any historical-political analysis of state development.79 With his interpretation of the rights of man—which emphasized the general unity of European and American legal culture, rather than Germanic exclusivity—alongside the religious freedom unleashed by the Reformation, it was possible for him to reconcile historical discussions into his wider state theory in a relatively unproblematic way.80 The following section outlines the background to Jellinek's state theory and pursues this line of interpretation to consider the relationship between his Staatsrechtslehre and his understanding of the rights of man.
IV. Jellinek and Staatsrechtslehre in Wilhelmine Germany
Making a more general point than Diethelm Klippel, Ernst-Wolfgang Böckenförde has suggested that after the French Revolution and subsequent Prussian constitutional reforms, a profound conceptual change in German thinking about the state occurred.81 This involved a movement away from a broad general conception of the state as a machine—associated with territorial absolutism—toward an understanding of the state as a particular type of organization, or organism.82 Adam Müller, for whom the state represented the spiritual internal and external life of a nation, provided what is perhaps the most famous statement of this.83 Conversely, however, conservative monarchists like Friedrich Julius Stahl reacted against the philosophical concept of organism as applied to the state, suggesting instead that the true state must be an "ethical Empire" rooted in divine authority. For Stahl, the unity of the state was not to be found in organic metaphors, but in a concrete "personality." This personality was the monarch.84 Debates over the nature of the ruling or sovereign personality quickly became critical.
In the writings of Johann Kaspar Bluntschli, whose work might well be read as a more liberal response to Stahl, the "personality" that was to be recognized as sovereign was the state itself. For if the state were the highest form of juridical personality, then the organs of monarchy and indeed Parliament would be accorded a secondary (and potentially equal) status.85 Indeed, the idea of the state as an organism often criticized the correspondence of state power and sovereignty with the monarch, or in the case of Hegel, transposed this into a wider theory of reason unfolding in history. Conceptually, though, for Bluntschli the state as a (juristic) "person" was sovereign, so that all sovereignty was state sovereignty, sovereignty was the power of the state itself, and the state was identified with the people. The state appeared to Bluntschli as the "highest personality" in this way because it developed through the self-conscious will and action of those individual personalities within it; his was a mixture of political idealism and juridical formalism.86 Although the state was not a "natural" organism, being instead an artificial product of law, it remained a spiritual or moral organism, and this was perhaps his central argument. The personality of the state mirrored the personality of the people; it was a Volksperson.87 Jellinek too developed similar themes, with his synthetic approach to state-legal theory underpinned by psychological, historical, and sociological assumptions, as well as being located within a broadly idealist and organicist developmental schema.
Bluntschli's general formulations were to have an incredibly wide impact, ranging from a standard textbook in the Oxford syllabus, to a profound—and reciprocal—influence on Francis (Franz) Lieber, and thereby the foundations of North American political science, .88 They were crucial to Jellinek's account of the state in international law. Bluntschli's attempt to move beyond his former teacher Savigny's strictures about the innate consciousness of a people and its expression in law was premised upon a view of the importance of mutual respect for human beings by virtue of their shared humanity.89 However, as Betsy Baker Röben has recently remarked, "his international law was in effect nothing more than law built on a community of legal consciousness, the formation of which corresponded with Savigny's teachings about the creation of positive law."90
Savigny had written that only individual legal subjects could be treated as independent entities in legal terms, and the law [Recht] for him existed to serve the moral claims of such free individuals. Therefore, the juristische Person of the state should be understood as a legal subject, and not—a break with natural law thinking—a persona moralis composita. From this perspective, the formal law [Recht] was to be the means of realizing the liberty inherent within "law" [Gesetz] itself, as his strictures against Thibaut on the "vocation" of the age for jurisprudence and legislation made clear.91 This connected to his desire to map the contours of Roman law and Roman history onto the development of law in contemporary Germany and to argue against the need for codification.92 The principal emphasis here concerned the "purpose of the state [Staatszweck]" in terms of securing the "harmony of liberty [Freiheit] and order."93 But it was the manner of interpreting the distinction between the ultimate sources of law and practically operative positive law that represented a central difference between Jellinek and Bluntschli. The disagreement was illustrated most clearly in the field of international law.
Jellinek countered Bluntschli's focus on the legal consciousness of a people with the argument that a focus on the will of the state was the "formal basis of international law." Moreover, he argued that these historical (or historicist) discussions could be separated out from discussions of juridical interest, thus modifying Bluntschli's distinctions between Staatsrecht (dealing with the state "as it is") and Politik (concerned with the "ends to which public efforts are directed").94 This focus on the will of the state was enough for a legal interpretation, argued Jellinek, and Bluntschli's concerns were therefore of little practical import in terms of thinking about the state as a legal entity.95 This desire to separate the legal and the political aspects of the state was already one of Jellinek's central concerns in 1880, when he wrote of the legal character of "contracts" or treaties between states in international law.96 It was the same type of separation that he developed more fully twenty years later in his Allgemeine Staatslehre.
According to Bluntschli, however, the logic of Jellinek's position was that if the "will" of the state remained paramount in international law, then this "free will" meant that one need not show any interest in tracing its actual source, for it was irrelevant in practical terms. The Staatswille, in effect, was self-limiting and self-determining.97 Bluntschli argued that Jellinek's account could provide any number of justifications for international anarchy. "On the other hand," if "one assumed that binding law arose from human legal consciousness, the foundations of international law became much more relevant and the will of States as a formal source of law would be limited by the legal consciousness as expressed in a wider range of legal forms than treaties and custom."98
By tying international law to the idea of the self-limiting will of the state, Jellinek developed an account that could explain its "juristic" component without recourse to either natural law doctrines or the idea that treaties between states were subject to higher order legal norms than conventional inter-state interactions.99 This was linked to the wider development in German state-legal theory, encapsulated in the movement away from a strictly historicist view of politics toward a more broadly social scientific account of the structures and legal institutions of the state. As Gangolf Hübinger has argued, with the writings of Jellinek, Otto Hintze, and Max Weber and in particular with the conjoining of state theory and politics, history and sociology, something like a new political science was inaugurated in the Wilhelmine Germany of the Jahrhundertwende.100 Jellinek's account illustrated a desire to understand the state as a more developed form of social union than any other and to explain its development historically and analytically from within a broad (and teleological) vision of the progressive enrichment of human powers throughout history. To fully understand Jellinek's distinction between the self-binding character of the will of the state through law, and the contrasting idea that law is the expression of the particular development of human association, requires a return to the major analytical categories of later nineteenth-century German sciences of state.
Bluntschli's discussions were developed in an altogether more conservative way by later writers who considered the "juristic personality" of the state in abstract and juridical terms and who thought the idea of the state as a "real" personality irrelevant to public law, although not to the state's actual historical development. Thus, while Bluntschli provided a background focus on the importance of history and human association that clearly relates to one dimension of Jellinek's thought, the juridical aspect of his state theory—present in the early work on international law—was strongly influenced by the work of Gerber and Laband. Their arguments would have a profound effect on his approach to the task of developing an account of individual rights within the state. For these writers (typically understood as the main representatives of state-legal positivism in Imperial Germany) rejected the assumption that the legal concept of the state could be understood in ethical-political terms, but maintained that the state remained at the apex of the legal and political order.101
Developing the arguments of his teacher, the great Romanist Georg Friedrich Puchta (critic of Georg Beseler, noted Germanist and teacher of Otto von Gierke), Gerber argued that the uniqueness of juridical science lay in its systematic and systematizing character.102 He suggested that just as the system of private law was premised on the will of individuals, a similarly structured dogmatic-scientific theory of public law could be developed. The culmination of his researches was the publication of the Grundzüge eines Systems des deutschen Staatsrechts in 1865. As Jounjan asserts, in this work Gerber developed a dualist ontology, suggesting that there was a clear separation between natural and hence political accounts of the state on the one hand, and juridical interpretations on the other. Thus, with a political-natural concept of the body politic as a unified organism, he affirmed the legitimacy of the monarch as the head of the organic state body, so that the organic-natural state was understood as an ethical personality.
However, for a juridical understanding of the state, the legality and indeed the legitimacy of the monarch's position was simply assumed. This was because in law the construction of the state had nothing whatsoever to do with the popular will of the people. For although the people form the basis of the political-natural state, legally they are merely objects of its rule.103 The twin poles of Gerber's thought, which would be of such importance to Jellinek, were thereby established; rule [Herrschaft] and will [Wille].104 Indeed, Gerber suggested that the juridical kernel of state power [Staatsge-walt] was the will [Willensmacht] of the monarch, over and above "the ruled [Beherrschten]."105 This is what lay behind his famous remark that there would be no juridical difference if the concept of "citizen [Staatsbürger]" were replaced with that of "subject [Unterthan]," for the two were coterminous. In the figure of the monarch the abstract character of state power is embodied, and therefore those other organs of the state—such as the bureaucracy—are simply emanations of this ruling will.106
If Gerber advocated a "material" Staatsrecht, founded on the assumption that the state was a real, ruling will, then Paul Laband tried to develop a legal-dogmatic conception of a new "imperial" Staatsrecht [Reichs-staatsrechts], in Das Staatsrecht des deutschen Reiches (1876–1882). Laband did not tie himself to the central tenet of legal positivism—the idea that the law is a "gapless [Lückenlosigkeit]" order—but he too assumed the completeness of positive law and its separateness from historical-political questions.107 Moreover, although the logical structure of his argumentation was depoliticized, the implications of the theory itself were highly political. Laband, like Gerber, attempted to legitimate constitutional monarchy.108
In terms of the conceptual importance for public law, though, his "essential question" concerned "the unity of the state-personality [Staatspersönlichkeit] and the unity of the state power."109 Law stems from the state, the state is sovereign, and therefore rights are the gift of the state and not the natural possession of the subject. Because the state in fact possesses such rights, they are in effect the state's self-imposed limitations on its own administrative behavior. From this it follows that even a basic statute—as the direct expression of the will of the state—could limit or even abolish particular individual rights, provided it is formally correct. Hence, all individual rights are negative limits on state activity, which the state has itself imposed through the foundational concept of the statute.110 Indeed, Laband viewed the "scientific task of a dogmatics of a particular positive law" as capable of being traced back "from the individual legal propositions to more general concepts." The "consequences that follow from these concepts" could then similarly be derived.111
Otto Gierke was the best-known critic of Laband's excision of legal theory from history, suggesting that legal-science should properly abstract its theory from real world experience rather than try to distinguish juridical from political science. He led a revival of the "Germanist" approach to law and association most notably in debates about the ratification of the Civil Code, and his well-known distinction between Herrschaft and Genossenschaft, as opposed to Herrschaft and Wille, was combined with a clear focus on the historical character of state development.112 This was important for Jellinek, Jens Kersten argues, because he developed his own version of rights and the state in an attempt to marry the positivism of Gerber and Laband with the "juristic socialism" of Gierke and a corresponding focus on the "power of human association."113 Allied to Bluntschli's impact on Jellinek's account of international law and the historical character of state development, such in outline is the broad context of the debates within Wilhelmine Staatsrechtslehre with which Jellinek was concerned. With this in view, some of the central elements of his work can now be more fully elaborated.
This "natural scholar," as Max Weber called Jellinek, first published his Allgemeine Staatslehre in 1900. It contains a critical methodological discussion of "ideal" and "empirical" types, often thought to be forerunners of Weber's later, more famous discussions. But Jellinek's types build on the standard distinctions outlined in mainstream accounts—like Bluntschli's—between public law and political science. The idea of an "ideal-type" as outlined by Jellinek was understood as a search for the best type of state, in the manner of classical political theory. Conversely, Jellinek's empirical type, as Kersten writes, had the aim of underpinning a generic concept [Gattungsbegriff] of the state and its existence (in various different forms) in the real world and was therefore itself underscored by various assumptions about the historical development of forms of human association.114 Combining philosophical neo-Kantianism, which permitted the separation of analytical and historical argument, with a synthesis of psychological, sociological, and historical theories about the progress of humanity toward ever more advanced stages of development, Jellinek attempted to intertwine methods of scientific inquiry with political advocacy, legal theory with legal history. This provided a teleological basis from within which Jellinek could locate the development of the modern state as an expression of ever more complex forms of human association; in fact, the state was presented as the most developed form of social union so far achieved. Combined with a vision of human development as one of psychic and social progress underpinned by science, Jellinek's historicist jurisprudence was thoroughly buttressed by what he called a "metaphysic of history."115
Therefore, it is not surprising that within the Allgemeine Staatslehre Jellinek developed and adapted earlier questions that had engaged him concerning how positive subjective rights are possible within the state. To account for this, he developed a two-sided theory of the state.116 First, he accepted the starting points of Gerber and Laband, that positive law is a closed system and that private, individual rights are essentially negative, self-limiting offerings or concessions from the state. Second, however, Jellinek attempted to offer an account that also accepted the importance of real-world individuals and groups. In his writings, the state is a ruling legal entity, as well as political and associational, because the individuals under its reach are also its "members."117 As well as being subjects, individuals were also citizens who necessarily possess civil rights so there must be a point at which some positive enforcement of their negative individual rights becomes available within the state.118
In the wider context of Jellinek's state theory, the Staatsvolk were both the subject and the object of the state's Herrschaft.119 Equally, although the state is the ultimate source of political will, every state requires what he termed a "highest organ," which is the decisive political power. This power, typically associated with the monarch under the German system of constitutional monarchy, derived its legitimacy from the state and was subject only to the state. The highest organ was therefore a "bearer" of the will of the state, and there could be only one such organ; Jellinek's liberal support for constitutional monarchy was here clearly apparent.
In essence, this was Jellinek's solution to the apparently insoluble debates about the position and personality of the state. He further subdivided his outline to contrast "dependent" organs, like parliaments, with "independent" organs that could express the will of the state, such as the monarch. Similarly, the people [Volk] in Jellinek's Allgemeine Staatslehre were understood as a body whose will was represented in the secondary and dependent organ of the Parliament. Earlier, in fact just three years before the publication of his essay on the rights of man, he had suggested that there were four principal categories of "status" into which individuals could be placed under public law either as "subjects," or "objects," of the person of the state. They could be passive objects with a duty to obey (status passivus), citizens, or rather subjects, at liberty in the state (status negativus), citizens who can make claims upon the state (status positivus), or citizens supportive of the state with a right of participation (status activus).120
Correlatively, he had argued in the System der subjektiven öffentlichen Rechte that the central juridical lesson of the French Revolution was that subjective rights were only possible through a positive state constitution and that all subsequent constitutions after the French Déclaration had built on its catalog of rights. His later essay on the origins of the rights of man proved that these ideas had a much longer history, rooted in the development of Anglo-American and European legal and political culture.121 This could be examined by legal-historical scholarship and was necessarily related to the historical development of the state because the state is the sovereign body from which laws are derived, and the very idea of the state makes sense only "through the procedures of law carried on within it."122 For Jellinek, states are formed through legal-historical processes and must then be bound by law.
However, this type of argument raised in a stark form the Hobbesian question of how the sovereign entity was itself to be subject to the law. The crucial implications for both domestic and international relations seem obvious enough. The state is the source of law, but to be subject to its own rules would seem to be logically contradictory, and this was precisely what Bluntschli discerned in his critique of Jellinek's Völkerrecht. Hence, Jellinek proposed an allgemeine soziale Staatslehre account of the state's empirical and historical existence, alongside an allgemeine Staatsrechtslehre or juristic examination of the legal norms that made up the will of the state.123 In itself, this corresponded to what is usually termed his "three-element theory," which argued that the principal elements necessary to any state qua state, to its very "being" [Dasein] in fact, were territory, membership, and ruling power.124
Recognizing that a purely juristic method could not correspond to political reality, Jellinek continued to suggest that although particular actors and contexts must inform legal analysis, juridical science should rightly be separate from political, economic, and sociological concerns.125 For instance, criticizing Gierke's conception of the Genossenschaft as a theory of the state's "pre-juristic being [vorjuristischen Dasein]," Jellinek wrote that what was specific to the state was that it was the very location of politics itself. Thus, it should not be the character or personality of the association that is focused upon, but instead its "unity" [Verbandseinheit].126 He suggested—in what appears to be an arresting anticipation of Carl Schmitt's theory but which was actually a commonplace of contemporary legal theory—that "'politics' is synonymous with 'stateness' ['Politisch' heißt 'staatlich']; [because] in the concept of the political one had already thought of the concept of the state."127
Politics was then a practical science of the state, concerned with its ultimate purpose [Staatszweck], its traditional focus within the German sciences of state, while Staatsrecht or public law proper was concerned with the legal unity of the state, a particularly modern development.128 Jellinek's observations on this point were deep rooted. As early as 1880 he had written that "all law is the will of the staatlichen community," and that the state obligates itself to act through its own norms.129 Precisely this type of argument continued to underpin his discussions of the rights of man and the rights of the state. However, Jellinek also conformed to the spirit of the age in his definition of political life as a struggle for the acquisition of power [Machterwerb]. Not only was this a general sociological principle, but the state is the "strongest social power factor [soziale Machtfaktor]" of all in this continuous struggle.130 This opinion was echoed in an original lecture on the role of the "fall of man" in the development of the study of Staatswissenschaft, published immediately prior to the essay on the rights of man; it remained Jellinek's position in his later work.131
The juristic concept of state that Jellinek referred to conceived of the state as possessing both "original ruling power [ursprünglicher Herrschermacht]" and as embodying the "associational unity of settled peoples."132 In his Staatsrechtslehre, therefore, Jellinek argued that the state was a closed entity, amenable to rational legal analysis, but from where did these "incipient ruling powers" stem? The answer was supplied in his Soziallehre account, which exemplified the other side of his state theory. This suggested that at root the state was "a function of the social relations between men."133 It was an example of his famous aphorism concerning the "normative power of the real" [normativen Kraft des Faktischen], which connects the theoretical and the historical sides of his interpretation, as well as an illustration of the teleological underpinnings of his theory of the state as an "associational unity."134 The voluntaristic implications of his discussion for conceptions of legitimacy—of potentially enormous importance for Weber's later discussion—was that "a political order exists because its subjects [die Beherrschten] believe it to exist."135 Sociologically sharper once again, though, was Jellinek's recognition that apart from its adherence to legality, real political order can only be maintained by "external means of power [äußere Machtmittel]."
Conversely, Jellinek's argument also illustrated the crucial importance of an informal [zwanglosere] conception of law.136 The external means necessary for the maintenance of political order therefore not only led neatly into Weber's own discussion, but also ran against the grain of much contemporary thinking—illustrated in Rudolf von Jhering's argument that law is the "discipline of compulsion or force" [Zwang].137 This was because although Jellinek was concerned to keep "the legal and political sciences together," it was his "achievement" to "combine this concern for the social context of law with the neo-Kantian (and legal positivist) insistence on the strict separation of facts and norms."138 Clearly, as Kersten argues, Jellinek understood politics as both a "science" and an "art form." This corresponded to a distinction between practical and scientific politics, itself based upon the difference between a science of politics as a science of the state (a juridical account) and the actual manoeuvres of political actors in history as well as the progressive development of human association (the historical account). Thus, Jellinek's distinction between "theoretical Staatslehre" and practical politics corresponded to a difference between scientific knowledge and value judgments. It also built upon his prior methodological separation of facts and norms, which illustrates the extent to which Jellinek's writings were framed within a broader neo-Kantian philosophical scheme.139 In fact, Jellinek's Allgemeine Staatslehre is a series of concentric methodological circles. All are closed and self-contained, but without the initial methodological separation of facts and norms, none would survive.
His ideas concerning the self-binding [Selbstbindung] of the state suggested that the state limits its power both internally, in its form as a legal and constitutional state, and externally, as a subject of international law. Therefore, the "normative self-limitation of state power" corresponded with a theory of the state as an inorganic but juristic person, although how it actually limits itself in practice was a "metajuridical" or associational and hence political question.140 This was why Jellinek thought Bluntschli's strictures on the "origins" of the legal will of the state of little use for understanding the operative legal force of treaties in international law, although it could, of course, tell us something about why certain states might react differently to others.
In Kenneth Dyson's opinion, Jellinek's thought represented the "idea that somewhere in the community, whether in the people or in the prince or in both combined, there existed a supreme will that could alter laws to suit the changing requirements of society." Hence, "this organ or body was simultaneously higher than the law, and conditioned by the law, a paradox that nevertheless appeals to common sense and which theorists such as Jhering and Jellinek attempted to resolve by the notion of 'auto-limitation.'" Here, "the state binds itself, for example, by a written constitution."141 The practical implications of Jellinek's writings can be better appreciated when seen in the context of these theoretical developments and also in terms of the development of broad plans for the future of a constitutionally regulated German nation-state.
Understanding rights juridically—as concessions from the state—but claiming that these concessions might be received or challenged through the practical struggles of everyday political life, reconciled legal theory and historical practice within a broadly idealist form of historicism. This separation and reconciliation permitted Jellinek the luxury of a closed and coherent legal theory, while also providing him with the space and freedom to support liberal reforms of the imperial constitutional monarchy as legitimate expressions of the will of the people. For here, rooted in the social relations between peoples and the inherent trend within human nature toward ever more complex forms of association, the origins of rights—if not the actions of positive law itself—might be sought. Put schematically, Jellinek's political theory seems quite neatly to reflect a general liberal outlook of his age, whilst his legalistic approach to juridical theory provided a scientific approach to the analysis of law as the expression of the will of the state. These background contexts explain why Jellinek found the "origins" of the rights of man in American constitutionalism in the way that he did, for it was a moment when the interrelated juridical, historical, and "natural" rights discourses of the shared legal-historical culture of Europe became united in positive form.
V. Revisiting the Rights of Man: Jellinek and America
As David Armitage has recently written, the American Declaration of Independence is often interpreted in terms of the justifications it offered for resisting political authority as violations of rights principles. Hence, it is typically analyzed in terms of the languages of either natural-rights Lockean political theory, or as an illustration of a "Machiavellian moment." This, as Armitage suggests, results in a neglect of the major premise of the Declaration, which was itself a statement of intent, simply put, a de facto "declaration" of separation and independence expressing legal intent not only in the language of political thought but also in that of contemporary international law.142 Therefore, "unlike the French Revolution, the American Revolution was not a nationalistic affront to international stability," because the declaration was such that it could only come into force if it was accepted by other members of the international community of which the thirteen colonies wished to become a part. So, it is perhaps more appropriate to see the American Revolution "as much about the creation of states (in the international sense) as it was about the birth of a nation," that is, as a declaration or wish to join an extant states' system.143
This is entirely how Jellinek viewed the American Declaration. Located in the context of his "two-sided" theory of the state, Jellinek's account of the "rise and decline [Untergang] of states" was, when focused specifically on the transition from colony to state, based upon the legal and practical problems of how a declaration could be enacted. Such problems could only be understood "when it is grasped that the state is the exclusive [ausschließlich] legal institution," because only from this premise "can the question of the legal foundation of actual states be raised. However, the state is first of all a historical-social formation [Bildung] to which the law is connected, but which cannot be created by it, for it is instead the very foundation of its being."144
As this relates to international law [Völkerrecht], Jellinek clearly tried to provide something of a middle way between the legal formalism of Gerber and Laband, the Germanism and associationalism of writers like Gierke and later Hugo Preuß, and the liberal-historicist arguments of Bluntschli.145 He generously acknowledged the latter's importance in particular.146 However, to be able to interpret the American Declaration of Independence as precisely that, a declaration of independence from the English Crown in order to act autonomously in the international arena, required for Jellinek a prior account of how the will of the state is formed. And Jellinek did not understand law simply as the spontaneous expression of popular will, but instead as a combination of historical and conceptual developments. Based on his understanding of scientific method, Jellinek was perfectly comfortable in expressing a juridical account of the will of the state, underpinned by a historicist and idealist account of the development of the state and the progress of humanity.147 For the state qua state is only understandable intellectually in terms of the concepts formed in the mind of the analyst; this is, in essence, the presupposition of the "empirical type." Moreover, in order to explain the obvious differences between states, and to account for the different trajectory of forms of state power, abstract heuristic conceptualizations were required. By developing these concepts in his own work, Jellinek was able to separate the juridical from the factual side of state development, whilst simultaneously and without contradiction suggesting that the legal will of the state is itself historically delimited and contingent.
By explaining state power as the emanation of legal will, Jellinek determined that individual "rights" to life, liberty, and property were best understood both in terms of "concessions" from a state that agreed to limit its reach through "self-binding" [Selbstverpflichtung] and the effects of historically conditioned struggles for recognition. This was the importance of the religious individualism promoted during the Reformation, which inflected the political thought of revolutionary England and America and which stood at the root of modern discussions of natural rights as outlined in his essay on the subject. The Reformation doctrine of justification, which tied individual salvation to faith, did (when further aligned with the associated doctrines of predestination within Calvinism) promote a radical individualism while simultaneously tightening the bonds between individuals and the church, and therefore between individuals and the state.148 But the result was, as Max Weber famously suggested, a profoundly lonely situation. In fact, Jellinek's discussion of the religious origins of the rights of man was to have a notable effect not only on Weber's later discussions of Protestantism.149 It would also impact on discussions of human association in religious sects in particular and associational life in civil society in general. According to Weber, of course, just as Jellinek (and also Ernst Troeltsch) had argued, sects formed one of the most important foundations of modern individualism.150
The other major source of individual rights, however, was the historicist claim associated most clearly with the Teutonic conception of rights and the state, whereby the relationship between ruler and ruled was both reciprocal and historically contingent. That is, rights claims were necessarily informed by the context in which they developed.151 Historical challenges to the state had transformed the Teutonic conception of right in particular, so that when combined with the social effects of religious individualism, the "origins" of the rights of man could be located in their historical context. He suggested, therefore, that the test of his argument would itself need to be historical and not simply jurisprudential.152
Jellinek's position made it almost certain that he would try to explain the idea of the "rights of man" based on a positive constitution through the medium of the American, rather than the French experience. For the importance of sects and religious associations to the formation of the North American colonies has long been appreciated, while a crucial political development in the formation of the American Constitution was a new and revised conception of political representation, a seminal development of the English model. Indeed, the English model of constitutional government was itself underpinned by a particular vision of national identity, with a free people united by commercial interest—something not achieved by territorial expansion alone—that was buttressed by a revised conception of raison d'état after the Glorious Revolution.153
By focusing on the role of religious individualism in promoting a new and more focused conception of the rights of the individual, Jellinek thereby tied the institutionalizing of a "culture of rights" to projects of both state building and nation building in history. His own writings can, similarly, be located within the framework of German nation and state building projects.154 Jellinek's support for liberal, constitutional monarchy allows us to place his writings within this context, while his philosophical idealism and broad historicism presented a view of the growth of individual rights and the modern state as interrelated and necessarily progressive in character. If the modern state is the most advanced form of social union, then a progressively more complex and multifaceted character of human association obviously underpins it. Thus, historical and psychological teleology lies behind Jellinek's state theory. But it must be remembered that for Jellinek there was no inconsistency within this research program, given the prior philosophical separation of facts and norms upon which his Allgemeine Staatslehre was based.
Overall, Jellinek's methodological separation of facts and norms, or the political-historical from the juridical, seems to have predetermined the structure of his account of the origins of the French Déclaration. Equally though, his writings also provide what is probably the most developed synthesis of nineteenth-century German Staatsrechtslehre, whose sophisticated philosophical underpinnings provided a bridge to the development of legal positivism in early twentieth-century Germany. Very little of this is found simply by reading the debate between Jellinek and Boutmy, yet this remains the most common use made of Jellinek's writings by nonlegal intellectual historians. It has been my aim in this article to suggest that there is much more of interest to be found within the complexities of Jellinek's thinking. Furthermore, I have argued that his writings are worth considering in detail, not only for what they tell us of Jellinek, but also for the light they shed on the character of German legal-historical scholarship during the transition from the nineteenth to the twentieth century. Jellinek's position, with its mixture of philosophical idealism, legal positivism, historical and psychological teleology, and a vision of human progress entwined with the development of the state, represents an unsurpassed synthesis of these elements from within the broad tradition of German Staatsrechtslehre. Correlatively, although his essay on the rights of man can only be understood with an awareness of the wider context of his state-legal theory, Jellinek's account of the development of individual rights undercuts historiographical arguments about a distinctively German idea of freedom. His interpretation is instead a work of legal history that emphasizes the unity of the juridical culture between Europe and America because of a shared heritage in terms of the language of rights. It is clearly a heritage whose implications have not yet been fully worked out in practice.
Duncan Kelly is a lecturer in the department of politics at the University of Sheffield . He is most grateful to the editor, Christopher Tomlins, and to four anonymous referees of Law and History Review, for their bracing and constructive comments on earlier versions of this article.
Notes
1. Georg Jellinek, The Declaration of the Rights of Man and the Citizen (1895; New York: Henry Holt, 1901). The first English translation appeared in 1901 and is the principal edition used in this study; the French edition appeared in 1902. See also Émile Boutmy, "La Déclaration des droits de l'homme et du citoyen et M. Jellinek," Annales des sciences politiques 17 (1902): 415–43; Georg Jellinek, "La Déclaration des droits de l"homme et du citoyen et M. Boutmy," repr. in his Ausgewählte Schriften und Reden, ed. Walter Jellinek (Aalen: Scientia Verlag, [1911] 1970), 2:65–81.
2. Michael Ignatieff, Human Rights as Politics and Idolatry (Cambridge: Harvard University Press, 2001), 29, also 48, 64, 78ff.
3. Ibid., 82–92.
4. Wolfgang Schmale, "Georg Jellinek et la Déclaration des Droits de l'Homme de 1789," in Mélanges offerts à Claude Petitfrère: Regards sur les sociétés modernes (XVIe-XVIIe siècle), ed. D. Turrel (Tours: CEHVI, Publication de l'Université de Tours, 1997), 303–11, esp. 304. See Georg Jellinek, Allgemeine Staatslehre, 3rd ed. (Berlin: Julius Springer Verlag, [1900] 1921), esp. 416.
5. Georg Jellinek, Die Erklärung der Menschen—und Bürgerrechte: Ein Beitrag zur modernen Verfassungsgeschichte, 2nd ed. (Leipzig: Duncker & Humblot, 1904), vii–viii.
6. See Leonard Krieger, The German Idea of Freedom (Boston: Beacon, 1959); cf. Margaret Lavinia Anderson, "Reply to Volker Berghahn," Central European History 35 (2002): 83–90, who offers a stimulating critique of historiographical debates about a German Sonderweg in the light of her own recent research.
7. Schmale, "Georg Jellinek," 306; Michael Stolleis, "Georg Jellineks Beitrag zur Entwicklung der Menschen—und Bürgerrechte," in Georg Jellinek—Beiträge zu Leben und Werk, ed. Stanley Paulson and Martin Schulte (Tübingen: J. C. B. Mohr [Paul Siebeck], 2000), 109.
8. Michael Stolleis, Geschichte des öffentlichen Rechts in Deutschland, vol. 2, 1800–1914 (Munich: C. H. Beck, 1992), 450–55.
9. Hanna Pitkin, "Are Freedom and Liberty Twins?" Political Theory 16 (1988): 528–32, notes that the Indo-European origins of "liberty" are Greek and Latin, mediated later through French, while "freedom" is more Germanic and Anglo-Saxon. The distinction remains controversial etymologically, conceptually, and politically.
10. Mark Hewitson, National Identity and Political Thought in Germany: Wilhelmine Depictions of the French Third Republic, 1890–1914 (Oxford: Clarendon Press, 2000), esp. chaps. 2–3; Ernst-Wolfgang Böckenförde, "The German Type of Constitutional Monarchy in the Nineteenth Century," in his State, Society and Liberty, ed. and trans. J. A. Underwood (Leamington Spa: Berg, 1991), 87–114, provides a good discussion of the conceptual affinities between the idea of the Rechtsstaat and modern liberalism.
11. See Georg G. Iggers, The German Conception of History: The National Tradition of Historical Thought from Herder to the Present, rev. ed. (Hanover, N.H.: Wesleyan University Press, [1968] 1988); John Clairborne Isbell, The Birth of European Romanticism: Truth and Propaganda in Staël's "De l'Allemagne," 1810–1813 (Cambridge: Cambridge University Press, 1994), 124ff; Brian Vick, Defining Germany: The 1848 Frankfurt Parliamentarians and National Identity (Cambridge: Harvard University Press, 2002), esp. chap. 1.
12. In a debate about the possibilities of parliamentarization in Germany initiated in the Viennese Neue Freie Presse in 1907 by Gustav Schmoller, Schmoller defended the German Beamtenstaat as superior in form to any parliamentary system. Jellinek wrote a critical reply (as had Alfred Weber, who pleaded for the introduction of a parliamentary system) that brought elements of the two sides together. He concluded that a federal structure and a parliamentary system of government, as things stood with a weak Bundesrat in Germany, were completely incompatible. See Christoph Schönberger, "Ein Liberaler zwischen Staatswille und Volkswille," in Jellinek—Beiträge zu Leben und Werk, 21.
13. On the general philosophical problems with the idea of "influence" in the history of ideas, see Quentin Skinner, "Meaning and Understanding in the History of Ideas," repr. in his Visions of Politics, vol. 1, Regarding Method (Cambridge: Cambridge University Press, 2002), 57–89; also Donald R. Kelley, The Descent of Ideas: The History of Intellectual History (Aldershot: Ashgate, 2002).
14. Jellinek, Declaration of the Rights of Man, 44.
15. Ibid., 11.
16. Ibid., esp. 18–21, 27–42. On p. 20, he wrote that "the French Declaration of Rights is for the most part copied from the American declarations or 'bills of rights.'" In the second German edition of the essay, the Virginia Bill of Rights was printed as an appendix to the main text.
17. Ibid., 19, n. 12; Karl Marx, "On the Jewish Question" [1843], repr. in Karl Marx: Early Writings, ed. Lucio Colletti (London: Penguin, 1974), 227–31, had made similar points of comparison between the American Bill of Rights and the French Déclaration, linking them to ideas of individual freedom. Jellinek proably knew these, yet, when discussing Marx, he typically focused his criticism on the developmental implications of historical materialism. See Jens Kersten, Georg Jellinek und die klassische Staatslehre (Tübingen: J. C. B. Mohr [Paul Siebeck], 2000), 153.
18. Jellinek, Declaration of the Rights of Man, 46.
19. Ibid., 49f.
20. Ibid., 50f.
21. Ibid., 49.
22. Ibid., 94.
23. Ibid., 53.
24. Ibid., 54.
25. See E. A. Freeman, Comparative Politics (London: Macmillan, 1873), 127ff., and Lecture II in general; J. W. Burrow, A Liberal Descent (Cambridge: Cambridge University Press, 1983), chap. 7.
26. Jellinek, Declaration of the Rights of Man, 53f.
27. Ibid., 54. Emphasis added.
28. Cf. John Dunn, "The Politics of Locke in England and America in the Eighteenth Century," in John Locke: Problems and Perspectives, ed. John Yolton (Cambridge: Cambridge University Press, 1969), 45–80; Lance Banning, "Some Second Thoughts on Virtue and the Course of Revolutionary Thinking," in Conceptual Change and the Constitution, ed. Terence Ball and J. G. A. Pocock (Lawrence: University Press of Kansas, 1988), 194–212; Paul A. Rahe, Republics Ancient and Modern—Inventions of Prudence: Constituting the American Regime, vol. 3 (Chapel Hill and London: University of North Carolina Press, 1994).
29. Jellinek, Declaration of the Rights of Man, 91: "Locke's doctrines of a Law of Nature appear to have had no influence at all outside of England." However, the "continental doctrines of a Law of Nature played their important part for the first time at the end of the eighteenth century in the great social transformation of the French Revolution." (My emphasis.) Cf. Jellinek, "La Déclaration," 74: "Que Locke, que Blackstone, que Montesquieu, que Rousseau aient exercé une influence sur la Déclaration française, que le Droit anglais, par l'intermédiare de l'Amérique, ait agi indirectement sur elle, je pense l'avoir démontré surabondamment."
30. James H. Hutson, "The Bill of Rights and the American Revolutionary Experience," in A Culture of Rights: The Bill of Rights in Philosophy, Politics, and Law—1791 and 1991, ed. M. J. Lacey and Knud Haakonssen (Cambridge: Cambridge University Press, 1992), 66–74, 78–81. See also Jellinek, Declaration of the Rights of Man, 55.
31. Jellinek, Declaration of the Rights of Man, 68.
32. Ibid., 74, 78–89. On p. 77, Jellinek argued that "what has been held to be a work of the Revolution was in reality a fruit of the Reformation and its struggles"; see also Huston, "The Bill of Rights," 80–91.
33. Jellinek, Declaration of the Rights of Man, 95.
34. On this, see Jeremy Jennings, "The Déclaration des droits de l'homme et du Citoyen and Its Critics in France: Reaction and Idéologie," The Historical Journal 35 (1992): 839–59.
35. Interestingly enough, therefore, Boutmy did not make the rhetorical countermove of locating the origins of liberty in France in a protonationalist interpretation of Tacitus's Germania, as Bodin, for example, had done. See Robin Briggs, "From the German Forests to Civil Society: The Frankish Myth and the Ancient Constitution in France," in Civil Histories: Essays Presented to Sir Keith Thomas, ed. Peter Burke, Brian Harrison, and Paul Slack (Oxford: Oxford University Press, 2000), 231–49. For the revolutionary reinterpretation of this myth, see David Bell, The Cult of the Nation in France: Inventing Nationalism, 1680–1800 (Cambridge: Harvard University Press, 2001).
36. Boutmy, "La Déclaration," 421; and see also Keith Michael Baker, "Transformations of Classical Republicanism in Eighteenth-Century France," Journal of Modern History 73 (2001): 32–53.
37. Jellinek, "La Déclaration," 64–65.
38. See Quentin Skinner, "Humanism, Scholasticism and Popular Sovereignty," in his Visions of Politics, vol. 2, Renaissance Virtues (Cambridge: Cambridge University Press, 2002), 245–63.
39. Jellinek, "La Déclaration," 67.
40. Ibid., 74–75, 79.
41. See Boutmy, "La Déclaration," 423, on Jellinek's analogies and claims of "influence."
42. J. R. Pole, "Reflections on American Law and the American Revolution,"The William and Mary Quarterly, 3rd ser., 50 (1993): 123–59.
43. Jellinek, Declaration of the Rights of Man, 55.
44. William Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press, 1765–1769), 1:40–41, quoted in Knud Haakonssen, "From Natural Law to the Rights of Man," in A Culture of Rights, 34, n. 26.
45. See the discussion of Quentin Skinner, "From the State of Princes to the Person of the State," Visions of Politics, vol. 2, Renaissance Virtues, 409ff.
46.Digest i. 3. 32. 1. I have quoted from the variant reading in The Institutes of Justinian, ed. and trans. T. C. Sanders (London: Longmans Green and Co., 1922), 13. For an illuminating account of Gaius's importance to the development of Western legal thought both before and after Niebuhr's discovery, see Donald R. Kelley, "Gaius Noster: Substructures of Western Legal Thought," American Historical Review 84 (1979): 619–48.
47. The importance of this element has been restated recently by Quentin Skinner in his formulations of a largely submerged neo-Roman theory of liberty in British political thought of the seventeenth century. See Quentin Skinner, Liberty before Liberalism (Cambridge: Cambridge University Press, 1998).
48. See Annabel Brett, "The Civil Philosophy of Hugo Grotius," Historical Journal 45 (2002): 33, 41, 43.
49. See Haakonssen, "From Natural Law to the Rights of Man," 35. The classic statement is Thomas Hobbes, Leviathan [1651], ed. Richard Tuck (Cambridge: Cambridge University Press, 1992), chap. 14. For discussion see Quentin Skinner, "Hobbes on Rhetoric and the Construction of Morality," Visions of Politics, vol. 3, Hobbes and Civil Science (Cambridge: Cambridge University Press, 2002), 87–141.
50. See Tim Hochstrasser, Natural Law Theories in the Early Enlightenment (Cambridge: Cambridge University Press, 2001), 97, 101; Ian Hunter, Rival Enlightenments: Civil and Metaphysical Philosophy in Early Modern Germany (Cambridge: Cambridge University Press, 2001), 174; Istvan Hont, "Samuel Pufendorf and the Theoretical Origins of the Four-Stages Theory," in The Languages of Political Theory in Early-Modern Europe, ed. Anthony Pagden (Cambridge: Cambridge University Press, 1987), 253–76.
51. See David Johnston, Roman Law in Context (Cambridge: Cambridge University Press, 1999), 78, 106. Michael Oakeshott, On Human Conduct (Oxford: Clarendon Press, 1975), made the distinction between societas and universitas the background to his own theory of human association.
52. On Locke's debts to these traditions, see James Tully, An Approach to Political Philosophy: Locke in Contexts (Cambridge: Cambridge University Press, 1993), chap. 9.
53. Haakonssen, "From Natural Law to the Rights of Man," 47. See also Michael Ignatieff and Istvan Hont, eds., Wealth and Virtue (Cambridge: Cambridge University Press, 1983); Rahe, Republics Ancient and Modern, vol. 3.
54. Martyn Thompson, "The History of Fundamental Law in Political Thought from the French Wars of Religion to the American Revolution," American Historical Review 91 (1986): 1110.
55. Ibid., 1127.
56. Cf. Jellinek, "La Déclaration," 67; Dale van Kley, "From the Lessons of History to Truths for All Times and All Peoples: The Historical Origins of an Anti-Historical Declaration," in The French Idea of Freedom, ed. Dale van Kley (Berkeley: Stanford University Press, 1994), 110ff; Keith Michael Baker, "The Idea of a Declaration of Rights," in The French Idea of Freedom, 154–58, 194ff.
57. See Collette Clavreul, "Sieyès et la genèse de la répresentation modèrne," Droits 6 (1986): 45–56.
58. See Robert Wokler, "Rousseau's Pufendorf: Natural Law and the Foundations of Commercial Society," History of Political Thought 15 (1994): 373–402; Helena Rosenblatt, Rousseau and Geneva: From the First Discourse to the Social Contract, 1749–1762 (Cambridge: Cambridge University Press, 1997), esp. 167, 177; Richard Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (Oxford: Oxford University Press, 1999), 197–207.
59. Diethelm Klippel, "Reasonable Aims of Civil Society: Concerns of the State in German Political Theory in the Eighteenth and Early Nineteenth Centuries," in Rethinking Leviathan: The Eighteenth-Century State in Britain and Germany, ed. John Brewer and Eckhart Hellmuth (Oxford University Press and the German Historical Institute: Oxford, 1999), 87. See also Diethelm Klippel, "Legal Reforms: Changing the Law in Germany in the Ancien Régime and in the Vormärz," Proceedings of the British Academy 100 (1999): 43–59, esp. 53ff.
60. Keith Tribe, "Natural Law and the Origins of Nationalökonomie: L. H. von Jakob," in The Rise of the Social Sciences and the Formation of Modernity, ed. Johan Heilbron, Lars Magnusson, and Björn Wittrock (Kluwer: Dordrecht, 1998), 202, discusses this movement in terms of the transformation of the concept of "needs" in German economic discourse in particular.
61. On Humboldt and liberalism, see Ursula Vogel, "Liberty is Beautiful: Humboldt's Gift to Liberalism," History of Political Thought 3 (1982): 77–101. The classic discussion of Polizei remains that of Hans Maier, Die ältere deutsche Staats—und Verwaltungslehre, 2nd ed. (Munich: C. H. Beck, 1980); for critical commentary, see Keith Tribe, "From Cameralism to the Science of Government," in his Strategies of Economic Order (Cambridge: Cambridge University Press, 1995), 8–31.
62. Mark Raeff, "The Well-Ordered Police State and the Development of Modernity in Seventeenth- and Eighteenth-Century Europe: An Attempt at a Comparative Approach," American Historical Review 80 (1975): 1230: "the instruments of administration were coming to be seen as important as the ends they served or promoted." For wider reflections, see Mark Raeff, The Well-Ordered Police State: Social and Institutional Change through Law in the Germanies and Russia, 1600–1800 (New Haven: Yale University Press, 1983), esp. part 2; and Roland Axtmann, "'Police' and the Formation of the Modern State. Legal and Ideological Assumptions on State Capacity in the Austrian Lands of the Habsburg Empire, 1500–1800," German History 10 (1992): esp. 43, 60f.
63. Johann Jakob Moser, quoted in Mack Walker, Johann Jakob Moser and the Holy Roman Empire of the German Nation (Chapel Hill: University of North Carolina Press, 1980), 306.
64. See David F. Lindenfeld, The Practical Imagination: The German Sciences of State in the Nineteenth Century (Chicago: Chicago University Press, 1997).
65. See Mack Walker, "Rights and Functions: The Social Categories of Eighteenth-Century German Jurists and Cameralists," Journal of Modern History 50 (1978): 234–51; also Fania Oz-Salzberger, "Scots, Germans, Republic and Commerce," in Republicanism—A Shared European Heritage, ed. Martin van Gelderen and Quentin Skinner (Cambridge: Cambridge University Press, 2002), 2:215f., 226.
66. Klippel, "Reasonable Aims of Civil Society," 97.
67. See Willi Paul Adams, "German Translations of the American Declaration of Independence,"The Journal of American History 85 (1999): 1325–49, esp. 1327ff.
68. Ibid., 1333; cf. Vick, Defining Germany, chap. 4.
69. See Abigail Green, Fatherlands: State Building and Nationhood in Nineteenth-Century Germany (Cambridge: Cambridge University Press, 2001), 98–99. Cf. Paul Nolte, "Bürgerideal, Gemeinde und Republik: 'Klassischer Republikanismus' im frühen deutschen Liberalismus," Historische Zeitschrift 254 (1992): 609–56; in general on German republicanism, see Jürgen Heideking and James A. Henretta, Republicanism and Liberalism in America and the German States, 1750–1850 (Cambridge: Cambridge University Press, 2002).
70. Horst Dippel, Die amerikanische Verfassung in Deutschland im 19. Jahrhundert: Das Dilemma von Politik und Staatsrecht (Goldbach: Keip Verlag, 1994), 76ff.; Jellinek, Declaration of the Rights of Man, 1–7.
71. Jellinek, Declaration of the Rights of Man, 5; Stolleis, "Georg Jellineks Beitrag," 110f.
72. Adams, "German Translations," 1337f.
73. Carl Welcker, "Bund," in Das Staats—Lexicon, ed. Carl von Rotteck and Carl Welcker (Altona, 1846), 2:714–15, quoted in Dippel, Die amerikanische Verfassung, 113–16.
74. See Green, Fatherlands, esp. 292–96; also Rogers Brubaker, Citizenship and Nationhood in Germany and France (Cambridge: Harvard University Press, 1992).
75. Dippel, Die amerikanische Verfassung, 59ff.
76. The general impact of Alexis de Tocqueville, Democracy in America, ed. and trans. Harvey C. Mansfield and Delba Winthrop (Chicago: University of Chicago Press, 2000), initially published in two volumes 1835/1840, should not be discounted here. Critical discussion of the work of Montesquieu was also central to the formation of early German liberalism. See Stefan Korioth, "'Monarchisches Prinzip' und Gewaltenteilung—Unvereinbar? Zur Wirkungsgeschichte der Gewaltenteilungslehre Montesquieus im deutschen Frühkonstitutionalismus," Der Staat 37 (1998): 27–55.
77. Wolfgang Schmale, "La France, l'Allemagne et la constitution (1789–1815)," Annales Historiques de la Révolution Française 4 (1991): 471; also Schmale, "Georg Jellinek," 307, 309f.
78. Cf. T. C. W. Blanning, The French Revolution in Germany (Oxford: Oxford University Press, 1983); see also Michael Rowe, "Between Empire and Home Town: Napoleonic Rule on the Rhine, 1799–1814," Historical Journal 42 (1999): 643–74, who emphasizes the character of elite manipulation and cooption for the maintenance of Napoleonic rule. Cf. Donald R. Kelley, "What Pleases the Prince: Justinian, Napoleon and the Lawyers," History of Political Thought 23 (2002): 294–97.
79. See Bernard Yack, "Popular Sovereignty and Nationalism," Political Theory 29 (2001): 517–36.
80. See Schmale, "Georg Jellinek," 306.
81. See Ernst-Wolfgang Böckenförde, "Organ, Organismus, Organisation, politischer Körper," Geschichtliche Grundbegriffe (Stuttgart: Klett-Cotta, 1982), 4:561; Michael Stolleis, Geschichte des öffentlichen Rechts, 56.
82. Barbara Stollberg-Rillinger, Der Staat als Maschine (Berlin: Duncker & Humblot, 1986).
83. Adam Müller, Die Elemente der Staatskunst (1808–1809; Berlin, 1936), 27. On these organic metaphors, see Böckenförde, "Organ, Organismus," 587; Stolleis, Geschichte des öffentlichen Rechts, 368f; cf. Sally Sedgwick, "The State as Organism: The Metaphysical Basis of Hegel's Philosophy of Right,"The Southern Journal of Philosophy 39 Supplement (2001): 171–88.
84. Erich Kaufmann, Über den Begriff des Organismus in der Staatslehre des 19. Jahrhunderts (Heidelberg: Carl Winters Universitätsbuchhandlung, 1908), 11, 16. See also Stolleis, Geschichte des öffentlichen Rechts, 107, 153; Böckenförde, "Organ, Organismus," 600, 608ff.
85. Christoph Schönberger, Das Parlament im Anstaltstaat. Zur Theorie parlamentarischer Repräsentation in der Staatsrechtslehre des Kaiserreichs (1871–1918) (Frankfurt am Main: Vittorio Klostermann, 1997), 62f. More generally, see Johann Kaspar Bluntschli, The Theory of the State, authorized translation from the 6th German edition (Kitchener: Batoche Books, 2000), 282ff.
86. Böckenförde, "Organ, Organismus," 598f., 606f.; see also Böckenförde, "Rechtsstaat," 93ff., 103.
87. Böckenförde, "Organ, Organismus," 589; Kaufmann, Begriff des Organismus, 16.
88. Cf. Betsy Baker Röben, "The Method behind Bluntschli's 'Modern' International Law," Journal of the History of International Law 4 (2002): 250–56; Dorothy Ross, The Origins of American Social Science (Cambridge: Cambridge University Press, 1991). On Bluntschli's impact in Oxford, where his General Theory of the State was a standard political science text in 1851/2, see Julia Stapleton, Englishness and the Study of Politics: The Social and Political Thought of Ernest Barker (Cambridge: Cambridge University Press, 1994), 59.
89. Georg Jellinek, "Johan Caspar Bluntschli," Ausgewählte Schriften und Reden, 1:292; see also the generous discussion in Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870–1969 (Cambridge University Press: Cambridge, 2002), 42–51.
90. Röben, "The Method behind Bluntschli's 'Modern' International Law," 267.
91. Martin Lipp, "'Persona Moralis,' 'Juristische Person' und 'Personenrecht'—Eine Studie zur Dogmengeschichte der 'Juristischen Person' im Naturrecht und frühen 19. Jahrhundert," Quaderni Fiorentini 11–12 (1983): 237, 258, 220ff. For the condensed critique of Thibaut concerning the necessity of a constitutional code, see Friedrich Karl von Savigny, Vom Beruf unsrer Zeit für Gesetzgebung und Rechtswissenschaft (Heidelberg: Mohr und Zimmer, 1814), esp. 155–60.
92. Peter Stein, Roman Law in European History (Cambridge: Cambridge University Press, 1999), 117; see also James Q. Whitman, The Legacy of Roman Law in the German Romantic Age (Princeton: Princeton University Press, 1990).
93. Stolleis, Geschichte des öffentlichen Rechts, 431f.; also Michael Stolleis, "Die Allgemeine Staatslehre im 19. Jahrhundert," in Naturrecht im 19. Jahrhundert: Kontinuität, In-halt-Funktion-Wirkung, ed. Diethelm Klippel (Goldbach: Keip Verlag, 1997), 16; Diethelm Klippel, "Politische und juristische Funktionen des Naturrechts in Deutschland im 18. und 19. Jahrhundert: Zur Einführung," Zeitschrift für neuere Rechtsgeschichte 22 Sonderdruck (2000): 3–10.
94. Bluntschli, Theory of the State, 13.
95. Röben, "Method behind Bluntschli's 'Modern' International Law," 272ff.
96. See Georg Jellinek, Die rechtliche Natur der Staatenverträge. Ein Beitrag zur juristischen Construction des Völkerrechts (Vienna: Alfred Holder, 1880), 43f.
97. This therefore resembles Hans Kelsen's later theory, perhaps itself unsurprising, given Jellinek's deep engagement with Southwest German neo-Kantianism. See Stanley Paulson, "The Neo-Kantian Dimension of Kelsen's Legal Theory," Oxford Journal of Legal Studies 12 (1992): 325–26; "On the Puzzle Surrounding Hans Kelsen's Basic Norm," Ratio Juris 13 (2000): 279–93.
98. Röben, "Method behind Bluntschli's 'Modern' International Law," 272; see also Koskemienni, Gentle Civilizer, 49: "Bluntschli's law was neither fixed on sovereign will nor drawn from Roman law or moral theory but emerged spontaneously through the lives of (European) peoples."
99. Koskemienni, Gentle Civilizer, 200.
100. Gangolf Hübinger, "Staatstheorie und Politik als Wissenschaft im Kaiserreich," in Politik, Philosophie, Praxis: Festschrift für Wilhelm Hennis zum 65. Geburtstag, ed. Hans Maier, Ulrich Matz, Kurt Sontheimer, Paul-Ludwig Weinacht (Stuttgart: Klett-Cotta, 1988), 143–61; "Historicism and the 'Noble Science of Politics' in Germany," in British and German Historiography, 1750–1950: Traditions, Perceptions and Transfers, ed. Benedikt Stuchtey and Peter Wende (Oxford: The German Historical Institute/Oxford University Press, 2000), 191–209.
101. The argument of this section builds upon the discussion of Duncan Kelly, The State of the Political: Conceptions of Politics and the State in the Thought of Max Weber, Carl Schmitt and Franz Neumann (Oxford: Oxford University Press/The British Academy, 2003).
102. Olivier Jouanjan, "Carl Friedrich Gerber et la constitution d'une science du droit public allemand," in La science juridique française et la science juridique allemande de 1870 à 1918, ed. Olivier Beaud and Patrick Wachsmann (Strasbourg: Presses Universitaires de Strasbourg, 1997), esp. 16–19.
103. Ibid., 57.
104. See Kersten, Jellinek und die klassische Staatslehre, 53.
105. Stolleis, Geschichte des öffentlichen Rechts, 334.
106. Ibid., 336.
107. Ibid., 344; Lindenfeld, The Practical Imagination, 257.
108. Between 1880 and 1918 Laband occupied positions as professor and then rector at the Kaiser Wilhelm University in Strasbourg and was a member of the Staatsrat. See Stolleis, Geschichte des öffentlichen Rechts, 347; Manfred Friedrich, "Paul Laband und die Staatsrechtswissenschaft seiner Zeit," Archiv des öffentlichen Rechts 111 (1986): 205–9; Bernhard Schlink, "Laband als Politiker," Der Staat 31 (1992): 553.
109. Stolleis, Geschichte des öffentlichen Rechts, 344f.
110. See Massimo La Torre, "'Rechtsstaat' and Legal Science. The Rise and Fall of the Concept of Subjective Right," Archiv für Rechts- und Sozialphilosophie 76 (1990): 60–63; Peter C. Caldwell, Popular Sovereignty and the Crisis of German Constitutional Law (Durham and London: Duke University Press, 1997), 16.
111. Paul Laband, Das Staatsrecht des deutschen Reiches, 5th ed. (1876–82; Tübingen: J. C. B. Mohr [Paul Siebeck], 1911), 1: ix, quoted in Lindenfeld, The Practical Imagination, 158. Otto Gierke was the most outspoken critic of this position. See Otto von Gierke, "Labands Staatsrecht und die deutsche Rechtswissenschaft," Jahrbuch für Gesetzgebung, Verwaltung und Volkswirtschaft im deutschen Reich, ed. Gustav Schmoller, vol. 7 (Leipzig: Duncker & Humblot, 1883): 7 [1103], 17 [1113]
112. For two recent discussions, see David Runciman, Pluralism and the Personality of the State (Cambridge: Cambridge University Press, 1997), 36; Caldwell, Popular Sovereignty, 14.
113. Kersten, Jellinek und die klassische Staatslehre, 275.
114. Ibid., 131.
115. Jellinek, Allgemeine Staatslehre, esp. 262; see also Kersten, Jellinek und die klassische Staatslehre, 106.
116. Jellinek, Allgemeine Staatslehre, 63.
117. Ibid., 408ff.
118. Caldwell, Popular Sovereignty, 34–35.
119. Dietmar Kettler, Die Drei-Elemente Lehre. Ein Beitrag zu Georg Jellineks Staatsbegriff, seiner Fortführung und Kritik, Inaugural Dissertation, Rechtswissenschaftliche Fakultät der Westfälische Wilhelms-Universität zu Munster (Vorgelegt von Dietmar Kettler aus Rahden, 1995), 26–30.
120. Georg Jellinek, System der subjektiven öffentlichen Rechte, 2nd ed. (1892; Tübingen: J. C. B. Mohr [Paul Siebeck], 1921); Allgemeine Staatslehre, 417f. See the discussion in Kersten, Jellinek und die klassische Staatslehre, 286f; Robert Alexy, "Grundrecht und Status," in Jellinek—Beiträge zu Leben und Werk, 221–25; Stolleis, "Georg Jellineks Beitrag," in ibid., 106.
121. Schmale, "Georg Jellinek," 304.
122. Caldwell, Popular Sovereignty. See also Jellinek, Allgemeine Staatslehre, 11, 62.
123. Jellinek, Allgemeine Staatslehre, esp. 10ff., 50; Lindenfeld, The Practical Imagination, 307.
124. Kettler, Die Drei-Elemente Lehre, 21ff.
125. Kersten, Jellinek und die klassische Staatslehre, 206.
126. Jellinek, Allgemeine Staatslehre, 159; see also Hübinger, "Staatstheorie und Politik als Wissenschaft," 149.
127. Jellinek, Allgemeine Staatslehre, 180: "im Begriff des Politischen hat man bereits den Begriff des Staates gedacht." Cf. Carl Schmitt, The Concept of the Political, 1932 ed., trans. George Schwab (1927; Chicago: University of Chicago Press, 1996), 19. I am most grateful to one of the referees of Law and History Review for picking up on this point among many others.
128. Jellinek, Allgemeine Staatslehre, 11–13, 15; Andreas Anter, "Georg Jellineks wissenschaftliche Politik. Positionen, Kontexte, Wirkungslinien," Politische Vierteljahresschrift 39 (1998): 509.
129. Jellinek, Die rechtliche Natur, 5, 7.
130. Jellinek, Allgemeine Staatslehre, 97; Anter, "Georg Jellineks wissenschaftliche Politik," 508; Hübinger, "Staatstheorie und Politik," 155.
131. Georg Jellinek, "Adam in der Staatslehre" [1893], in his Ausgewählte Schriften und Reden, 2:28.
132. Jellinek, Allgemeine Staatslehre, 180f., 183.
133. Breuer, Georg Jellinek und Max Weber, 14. See also Breuer, "Max Webers Staatssoziologie," 213; Hübinger, "Staatstheorie und Politik als Wissenschaft," 148.
134. Jellinek, Allgemeine Staatslehre, 338; Kersten, Jellinek und die klassische Staatslehre, 273–78.
135. Anter, "Georg Jellineks wissenschaftliche Politik," 521.
136. Ibid.
137. Rudolf Jhering, Der Zweck im Recht, 4th ed. (1877; Leipzig, 1904), 1:240, quoted in Anter, "Georg Jellineks wissenschaftliche Politik," 522. Jhering's writings on law were nevertheless underpinned by a complex account of the nature of the individual and were highly critical of contemporary jurisprudence. See Diethelm Klippel, "Juristische Begriffshimmel und Funktionale Rechtswelt," Colloquia für Dieter Schwab zum 65. Geburtstag, ed. Diethelm Klippel (Bielefeld: Gieseking Verlag, 2000), 129–34.
138. Kenneth Dyson, The State Tradition in Western Europe (Oxford: Martin Robertson, 1980), 175.
139. Kersten, Jellinek und die klassische Staatslehre, 193.
140. Ibid., 409f.
141. Dyson, State Tradition, 113.
142. David Armitage, "The Declaration of Independence and International Law,"William and Mary Quarterly 59 (2002): 43ff. On the reliance upon international law doctrines in The Federalist, see also Tara Helfman, "The Law of Nations in The Federalist Papers,"Legal History 23 (2002): 107–28.
143. Armitage, "Declaration of Independence," 64, also 58ff.
144. Jellinek, Allgemeine Staatslehre, 274.
145. See Joachen von Bernstorff, "Völkerrecht als modernes öffentliches Recht," in Beiträge zu Leben und Werk, 187.
146. Georg Jellinek, "Die Staatsrechtslehre und ihre Vertreter," in his Ausgewählte Schriften und Reden, 2:335–39.
147. The issue of how codified law deals with "founding" has remained pertinent to political theory. See Bonnie Honig, "Declarations of Independence: Arendt and Derrida on the Problem of Founding a Republic," American Political Science Review 85 (1991): 97–113.
148. See Berndt Hamm, "What Was the Reformation Doctrine of Justification?" in The German Reformation, ed. C. Scott Dixon (Oxford: Blackwell, 1999), 56–90; see also Wolfgang Weber, "The Absolutist Making of the Individual," in The Individual in Political Theory and Practice, ed. Janet Coleman (Clarendon Press: Oxford, 1996), 198f.
149. See recently Peter Ghosh, "Max Weber's Idea of 'Puritanism': A Case Study in the Empirical Construction of the Protestant Ethic," History of European Ideas 29 (2003): 193. Ghosh assesses Jellinek's discussion of the rights of man as part of a broader Germanic tradition, seeking the roots of individual rights within "liberal Protestantism" rather than the French Revolution.
150. For engaging recent reflections on this theme, see Sung Ho Kim, "'In Affirming Them, He Affirms Himself': Max Weber's Politics of Civil Society," Political Theory 28 (2000): 197–229.
151. Jellinek, Declaration of the Rights of Man, 90–98.
152. Ibid., 97, n. 6.
153. See J. G. A. Pocock, "States, Republics and Empires: The American Founding in Early Modern Perspective," in Conceptual Change and the Constitution, 70f.; J. R. Pole, Political Representation and the Origins of the American Republic (Berkeley: University of California Press, 1971). On English reason of state, see Steve Pincus, "'To Protect English Liberties': The English Nationalist Revolution of 1688–89," in Protestantism and National Identity, ed. Terry Claydon and Ian McBride (Cambridge: Cambridge University Press, 1998), 75–104; "From Holy Cause to Economic Interest: The Study of Population and the Invention of the State," in A Nation Transformed: England after the Restoration, ed. Alan Houston and Steve Pincus (Cambridge: Cambridge University Press, 2001), 272–98.
154. See also Horst Dippel, "Die Konstitutionalisierung des Bundesstaats in Deutschland 1849–1949 und die Rolle des amerikanischen Modells," Der Staat 38 (1999): 221–39.
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