Not legal will of its own distinct

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Not all jurists agree amongst themselves. There are some who regard the State as the sole and exclusive creator of law while others reject this opinion and maintain that a large body of law in the past was never enacted or created by the State. It essentially, the latter claim, consisted of customs and usages which no legal sovereign could afford to ignore. A jurist like Duguit would go to the length of asserting that law may exist anterior to the creation of the State, and therefore is independent of its will and that the State is bound by this law and has no right to override or disregard its prescriptions.

But German jurists, like F.J. Stahl, Lorenz Von Stein, Otto Gierke, and H.G. Trietschke, vest the State with a real, as opposed to a fictitious, personality having a legal will of its own distinct from the sum of the wills of the individuals composing the State, and a capacity for expressing its will in words and acts, and as the creator and possessor of rights. Thus, jurists themselves look differently on the nature of the State.

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As long as the conception of the State being a person means “nothing more than that it is a sovereign corporation, that is, an ‘artificial’ person, as the law regards all corporations, and as such possesses a collective will, a legal capacity, and power of collective action, apart from the will, the capacity and the power of action of the numerous individuals who compose it, just as a private corporation has a continued existence and possesses rights and obligations which are distinct from those of the shareholders. The juristic analysis is good and useful and may be accepted. But the conception of the real personality of the State, as asserted by some eminent German jurists, is pregnant with pernicious results.

One may accept the proposition that the State, like other corporations, has a legal personality and it can sue and be sued. It may own property, and States do, direct and undertake economic enterprises and perform other functions as the custodian of the interests of the present and future generations. Citizens of the State suffer from telescopic defects: they discount the future and put premium on the present. Moreover, individual interests change and shift. The State is a permanent legal entity and it suffers from no telescopic defects. It endures and represents the collective will and collective interests of all the citizens rather than individual interests represented by individual will. But to say that the State has a real personality apart from that of the citizens is to vest that entity with absolute powers which may prove antagonistic to the interests of a citizen and may dwarf his individuality, if not altogether suppress it.

The Juristic Theory of the State is, therefore, to be accepted only to the extent of attributing to the State a fictitious legal personality for certain specified purposes. For example, International Law characterises the State as a “person” and it is nothing more than “the juridical personification of the nation.”


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