Chapter XVI

THE STATE

. .
INTRODUCTION
A discussion on·analysis of law br~gs into pi~ture ~e .s~ate. al~o.dbou.gh
. . tence of law without the state 1s not an unposs1bihty, JUnsprudence
the ex1s tes mainly on the study of law o f th e c1v11se. ·1· d soc1e
. t·1es of the law
concen rt a , d • d "th
within a state. In other words, the jurispru ence 1s concerne w1 that law
which is enforced within a community (organised as state). In modem times,
jurisprudence includes also the study of law which is applied ~etween th~ states
(International law). The study of this branch of law also requires some idea or
study of the state. Th~s, for a proper understanding ofiaw~ some ~owledge or
idea of the authority which makes and enforces law, that 1s, state, 1s necessary.
In this chapter it is proposed to discuss the definiti_
o n and the essential elements
of the state and its origin, .functions, and relation with law.

~ i t i o n of State
LState has been defined by a number of jurists. Holland defines it as :,an,
association of human bein s enerall occu in a territor for the attainment
of interna order and external security'~ Salmond says that; :~ state or political
~ociety is an association of human beings established for the attainment of
certain means." R.G. Gettell's view is that "state is a community of persons
·permanently occupying a definite territory, legally independent of external
control, and possessing an organized government which creates and administers
law _over all persons and groups within its jurisdiction. Abstractly considered,
the stat~ is a juridical entity or person, concretely considered, it is the
commuruty _the. ter~tory which it occupies and the governmental organization
through _which it wills and acts". In brief, we may say that state is a community
~f considerable number of persons, occupying a temtory permanently,
ind~ endent ~f external control and having an organised government to which
a itual obedience is ren ere by the inhabitants within its jurisdicti~n.

_ ~El~ments of State
Thus, state has 'mainly four elements :-
--{ff Population .
•
Territory
Government, and
__..('r·Sovereignty
( 148 )
 (t) population (or the people)-p . - 149
state. There is ~o fixed number of opulation is Said to be th . -
of the nsiderable number. persons to constitute e Szne qua non
beaco1~erritory is the a~te,~t
~1errnu1.1f_ ... d 1 second elem
le having no ixe territory cannot . ent of the st t . ·
pe~rers, a s!ate ~ithout a, fixed territory isc;:::~te a state. Acco~~g~~mad1c
wfl'l uch a state is rare and generally by stat 1 e, hut practically the ex· ~9me
o s . ed a . - e we mean a te . . 1S ence
. no -f~ . te. ,The area ma b . rntonal state. ~re
States and mall states m Northern·,India~ e ~1g or~11. The Greek
-··:·..os such as the Roman Empire or the E . ancient times andtheb'
elllPu"' h m ire of As ig
sa s. is not necessary t at a state should have a o - an ar all re
; ; h~ve an unconnected territory such as Pakist compact territory. A state
~ed of two .separate territories the East { an before l97.1 .~efore 1971 it •
~an- ' _no~gladesh) and the West
(3) LGovernment-In the state there is a human machine -
authority to make and Qnforce law.@is authority is ailed ry as .the supr~e
"""""" · d - t · · · 1 - - c government. It 18
o!!,cUUSe on cer am prmcip es recognised by the community within the
territory of £the state: Q'houghd the. 9overnment is a single unit or enti~ for the
E!Poses o con~enience an efficiency, it works by distributing its functions
and p<:>wers to it organj.. These organs are three, namely, the leg15latµre, .the
executive and the iudiciar_y. - · • · _
- (4) Sovereignty-The Jourth element of the , state is sovereignty....
Sov_ereigntr_ means su reme ' or authority. A politically · organised
community wi in a territory to be ~ailed !. state m,ust have the sayereigny. It
means that it must be free from external control and the eo le within it must
!ffider obedience to it, e sovereignty is a very important and debatable
C01}£_~t, therefore, it shall bediscussed in some de~~ in the f~llowing chap.t~.
. - - .

~ e theories of the origin ofthe -state

Various theori~s of th~ origin of st~te have been given by .the jurists. Some:
important theories are :- ,...
/11) The force theory _
·A The divine theory
A) The social contract theory
The natural"" tneory; ancC - ';.
The historical or the evolutionary theory. · t being on
. s that the state came m o
(1) The force theory.-This theory sar d the weak to their conu-o) and
account oftfie use of forceJ The strong subJecte • ==·-·-~ -
st
relationship evolved in the form oi'lli~ a~e. th the state js ~ted by
(2) The divine theory.-According to
th18 anedory.go'vem llii people by the
-e King was given the ower t O contro 1 ·
God lar in ancien! im,es. anu said :
..,_ Vine Au onti"' s eory was very popu a· I
· gil f;tfclt.1.n ~fftti'1j~ 'fl·
""nt ~~II
-c.10"'1"""f-1ffll'1. ., TrJJP1.1111ram1om11 'ii' 1 fall Vamas and Ashramas
(Brahman created the king to protect the peop e o
devoted to their duties).
 JURISPRUDENCE
,{)_~..,
150 v'
d tO serve divergent ends. It was used to sup 0
This theory was use th t the king hi!s. a ~vine mission, therefore [ rt the
people argwnr: ·f;now the
th~ O
law given in the Scriptures. It
do justice and 15 boun th ir absolute authority and tyranny. They argued ~d
11\ttst

by despots to supportth ~t to do anything he liked and people could t

the . king had the au othn'ey power to the king was given by God. not
'th ·t because
interf~~i i . on tract theory.-This theory was propounded ~in Euro
1
',i . ctt> t:The soc:rt~ by eminent jurist~ and philosophers such as ~ -
, ) It has beenLock _ supk usseau and Kant. ,According to this theory,tt,the state ·is th '
0
} ~ '_ e, etweenthe eo le to unite to ether at the first instan e
\ result of an a :ent between the eo le and the ruler b which tl:le author~tye,

1
<\ and then an a e ·
given to ruler Different writers h ave given
· ifferent reasons
2 01
f_

. an~ power w~s .One group writers says that condition before the agreement
o this agreemen . . 1 f . . f th .
\>,J v ~as one of hardship and chaos, but the other c ass o wnters is o e view that

._ J
-..; ) it was of happiness. The former vie~ c~°:1e to support the abs~lute power of the
king and the·second vie~_s!?._o d_t_<? _hm1t 1t and t? _support the importance o_f the
< . ,_ rpie. This .,theory-is -responsible for great political upheaval~ m Europe. The
w,
.,1,.
t French Revolution was inspired by this theory. In modern times, the 'social
j contract' is ·conside~ to be only a myth and not a fact. 1
.,,.--(4) The natural theocy.-This1 theory says that state is the result of a
\ ,"-J/ naturaf ~ tinct in man. Aristotle said that man is a political animal and the
' o sooa m man ave birth to state The interest of the individual --

an . e s a e are e same, therefore, @an could not live outside or without the
§tate1~ gh !}tis th~ryalone is _not sufficient to explain the origin of the state,
it contains a substantial truth. In modem ~es, the theory has been transferred
into·a 'iitilifarian theory. · ___ _. ·
~ - The historical or the evolution theory.-According to this theory, the
~tate is the result of a urse of evolution• The s_gciet~ passed through various
~tages ~d various factors worked in sh!'ping and developing it. Th~tate came
into hem ihrou h a · adual rocess of development. This theory of the origin
of state is most convincing and logical. But 1t oes not mean· that other theories
iie of no importance and they should be rejected outright. Some of them contain
some truth and to some extent they contributed to the development of state.@r
the fore~ .and the natural theories have got the same truth and ey
~ght have been important factors in the origin o e state.
,i

· Functions of the State

-The functions of the state may be divided into two classes :-
{l) P r ~ or constituent (unctions.
~2) Secondary or ministrant functio~. --- .
-L Primary _o.- constituent fun"'r p .- · · - - - - -.
are those functions which · . c ions.- runary or cons.tituent. functions
functions are -tw..o :~ ·- -~ ne_cessary for the very exist~ce of the state. Such ·
(a) the defence against external ag :· - ·
_.
. . . gress1on, and
(b) the admuustrallon of jusitce.
The functions of the -state distinguish 1•t fr . . d
.
1• 5ee the view om other orgarusations an
of various jurists about 'Soc· 1 C ·
ta ·ontract' in Chapter IX.
 THE STATE

151
. .• u·on in the society..
·~oda
I a~ or ministrant fun t'
~'.ri , -.secondary .
t t:s,o. •1 · d . . c 1ons.-Th
.,·c1aSS-legts atton an taxation. This-clas . ere are two .
.•t}liS' ,eeessar}' for the welfare of the citiz s includes those f ll\~ functions in
~6as''Ulldergone a great change. Eve ens. modern u:'ctions also which
Sta~e'- duaJistiC view of the functions of~ state 1s becOll\ing eS, the concept of
·~,iejected and are considered to b e state and the ,.;.;.j;e~are state. The
: '-~ties of the community have comee t~u~dated views. The•:~ have
• : '.fhilt is why the governments of mod e regulated and ove e life and
staftee·-~;ets"• Thus, the secondary function efrn age are called te "gmed by the
o s f' 1 s o the st t h ovemments
-~ i.e,ctent and the ie d of state activity . . a e ave expanded t
YT

l~r,-. h 1 . is widenin o a very

. : •.,tries, the W o e econonuc structure 0 £ th g every day. In comm· . .
co-·
~tration. . In the Ind'ian Constitution e country 18 . a branch of publi
urust
• lliel'·secondary functions have been resc~~umber of functions which ia::
' la,ples of State policy'' ;'hich the st~te is to '!,:_der the heading 'Directive
'. ei~,ln 'the space, at our disposal here, it is not · 'bl . ·
dt"~k'.·:relating to state such as the classifi' ti~ossi fe for us to d1SCUss other
ll~-•r,"' ., .• Th f ca on o states naf ality • d
ci~ip., etc., . ere ore-, now the subject of . ' ion an
of )aw and state shall \le discussed. our main concern-the relation

~ aw and State
As observed earlier, the existence of law without state is not an
iIJ:\possibility, -?~t.-m..modem times we of law generally in a state. A
number of defuutions of law have been given only-in terms of state.. Thus when
we ·:speak abol¼t the one (state or law) the other necessarily com~ into the
picture, _The state manifests, or expresses itself, through law and the law has its
ill\portance, or sanctity because it has the sanction of the state. Therefore, the •
relation between the state and law .is very close and intimate. Three main
theories have been given about this relationship :-
~ t a t e is superior to law and makes it. ,
, .,.(lr La~ is @:eri~to ~tate and is binding on the state.
(3) 'Law and state are same. _
· • (1) Stale is superior to and is the creator of law; Absolutis~ Themy.-:_We
. r tunes totle wrote a The state is natural and
find this view m very ea • "'r< - · ..-
,-::-:-:-:--:.:::....,;.:;~.=.:..~:;...,r-:
t:-:-•-'!--:::-:w:-:e~-finct in Hobbes a g,reat 'supporter of this view.
neces~ry. · me 1ev _Jille5, -· :...i:.... t O 1•t making powffir
H~hhes' theory stands for ahsaJutism_and accoxuiug ' 1 but· e
!,: with the "Lel(.iathan" (iuler). He said that 'noneta~:' In m:i=~es, we
Commonwealth~. By Commonwealth he _means e~~fined law as the~
lmd in Austin a great eleborator ~f. this ~eoryi the soverei has the ower
~ < l of the sovereign'2 According t~ him, on ~n this asis at e sai the
to make law and he is not bound by_!$• It was . because the relationship of
subject cannot have any rights againSt th~ soveretS:uthority superior to botn to
right and duty between two partieS requtte". s ~ the sovereign in the state
enforce it and there is no s':1perior autbon~tionshiP between the sovereigr
~erefore, there can be no nght and duty .

L Put IV of the Indian Coostitution.

2. See ,Analytical School' (llaptel' m.
 JURISPRUDENCE
152 . . th t th rules which are not made by the sovereign
·d the subjects. Austill said
rd
:.n International law is not law but it is only
: not law. 'fllus, acco ing t; ;~u;tin's theory is that it gave a very clear,cut
°
a 'positive morality'. The mFen time his theory became very popular in the
basis to und erstand law. th or ht aTo some
' extent, Salmond als o echoe d the same
Anglo-American le~a~ . ougd ·through the State alone that law exists'. But there
view. He sa1·d. that '1t. 1st m antheory. The Historical school of Germany, and later
this
came a, rea~tton roaches contended that the law is anterior to state and ·
on, the·soci~logi d Pby the state. However, the theory (that state makes law)
it is. not always ":er~l support in the twentieth century by certain political
received
. . .esvery po
According ·
to Nazis and Fascists, w h o were in
· power in · Germany
,deol~~ · pectively before the Second World War, law was the w~ of tlie
.f'!
eaa::i by them as an act of treason. In the coll~tivist states, ~e law
ta { : nation. Any attemptto bind the state (by law or anytlung) was

~dered to be simply an instrument f~r the prosecu~on and _the fu~~t o'I
the state policy and is not c1 check upon 1t. J!l den:iocratl~ coun~nes, certain nghts
hav~ been given to citizens. and in some co~tries as In~1a, they have been
gua,anteed in the Conslitutis,. They are considered as binding pn the state:Ji!!
ail- analys1S of these rights would discl?se thafl~e have been grant . by the
State and it has a right to amend, curtail or modi£ the . In mo em times the
c-whole life of the communit as come to e re lated b the rule made .b state.
.. ere ore, e community has come to be regulated by the rule made by the
statet,Therefore, the r.revalent view is that State makes law and is su erior to it
(at least as it is in mo em times.
"'": (2) Law is anterior to state.-Another view about the relation of law and
state is thM'2 law is roore fondaroentaJ tfian the state and the s~e is bound by
,!!:, The jurist and writers like~ ~ g , J~k, :t,rabbe, Ql!guit.,Laski, .
J~gs and m~y others have supported thi,s_view. Though these jurists differ
about the grounds (which they present in support of their view), the conclusions
reached by them are mostly similar-that the law is more fundamental than the
state. Th.e views of some of these jurists will be given here.
The earlier view was that the 'natural law' :is binding on the state. .When
Bracton said that the king is boundby law, he pteans by law, the_~natural law'.
~ -is that the highescsfage of ·development of law _is that when it
binds the ruler and the ruled both. Jellinek says that although the state creates
law, ~t is .6ound by law. .The state voluntarily submits itself to law. Jellinek
? ~-it-as theory of autolimitations. According to Krabbe, the source-of law
IS_the subjective sense of the_.right in the community.. The sov.ereign is not .the.
source of law. It is community that express itself through the organs .of the
g~ c,nment. Duguit's view is that the 'social solidarity'1 is the end.,.of law and
~e •§f:1le, ~e .st~te bound by-it ('social solidarity')- and-any law. ma~e in
v10lation of ~t IS invalid. In modem times; the writers on English constitutional
law ~ve ~d that the golden principle of the English constitution is the 'rule
of la~• Dicey contended that in England there is a 'rule of law'. Explaining the
meanin~ of :ru1e of law' jle said that it means three things, and one of these
three_ things 1S1hat law ~supreme and there is no arbitrary power in the St~- 15
Laski was also a supporter of the same view. He wrote that 'the rule of law
1. S« Duguit's view in Chapter V 'The Sociological School'. ·
 I rit: :STATE
independent of the State and .
c1e~Js 1 have supported the view th 11'\deed is ant .
wfl! .,, - . at the law is en~r to it'. In .
153
1t, · • anterior t0 this way th
o0 It is subIIUtted that most of th . state and 18 . b' ese
. e view ( • 11\din
'fhey are more concerned w·th s given ab g
f~:~s. of law'f isthnot a tresult of any {ogical
'pµe
.what law oug;ve) are not based
ded to be th on actual
gles o e pas · an consti . Uction but i an What it is
s~~individuals hav~ been guarantee~tions of ntOderns resu11 of the poi;~
th them, t 1s su m1tted that e p and the state is ~s, certain rights t
b . th ti't ti' ower u un consi ere c:---.- o
drants e cons u on can be am ate ies to e ound
en e Th t e st
so ute Y bound b Y it.
0 YT . In
modern tun · us, the stat
Wl
ate and if it
a ~ c activities and th~ chan es ines, e _etua' ::a:ot e saicllooe
:. state ver owerful and law _political ideologies ~v ~ar ~lee
d ve O ment of the s ci on the lin is ~ns1 ere to e . ded to
eeory that law is anterior to state a.:ds b1~ the state deems fit mThstrumfent of
1s mding . · ere ore the
~ ) Law and state ai:e 5 am~-Th· th · on it does not stand crood'
- .._ is eo h !! '
I(elsen,1 one of the reatest jurists of th ry as been propounded b H
~ d law are the same mg. wot e resent centur • His view is tha}th~
:.:-~o~m
iElrLc ::·.:th:::e~dif
' f~e~re~n;.;.;t~an=.:.c~l,:::es:,;,. Wnen w~ thin~nnk are used for it because we look at
;:::;
. . .. . m terms of rul
w . we . . s of institution created b th es, we cau it l~w, ~d
Thus, there 1s no difference ·between law and th ose rules, we call 1t state.
... , th th e state The real · li ti f"
the theory is at e 1aw is more fundamental th th st imp ca on o
his been criticised ·on a number .
of grounds but thanth e ~te. Ke~' s theory
e eory 1S very wide and it
has the scope and th e capacity to make adjustments Fo 1 rd'
this.. theory, there •
can be an International legal ord~r ~:oamutPb ~' acco mg.~
emg a supenor
sta~e. _

Conclusion
Theories are not opposed to each other.-All these theories about the
relationship of law and state have their merits and the difference which appears
between them is not so big that they cannot be adjusted together. The state
bound by some fundamental law is not an impossibility. Though the swing of
th~ pendulum is in the other direction-that the state is not bound by law, it
cannot be asserted that it will not undergo any change in future. It is possible
that in future, law may be considered more fundamental than the state.
Future of State.-There is one more qu~tion upon which some lig~t ~ust
be thrown. It is as to what shall be the future shape and fiel~ of the activity of
the state. Though it is a greatly debatable point some observations may -:: : :
in this respect. The days of the doctrine of 'laissez faire' are gonde, _and Marxe
b d d b ew thoughts an 1 eas.
ranches of knowledge are being perva e Y n t , hen the society would
: : anticipated the 'withering away of ~ta ~e
me classless, does not find any support
th
state of things- In
m ernment based on Marxian
':ctua1
~e Soviet Union, the first. coun~ t? form a : : other country. In modem
1?eology, the state has become nughtier than ye They are preaching for
tbnes tarted a new mov ·· .
. , some great thinkers have s . that federation would ~am
ll\aking a world federation and the 5: 51.: a has come as a reaction against
~lonomous units. It is submitted th~
l. Ser Cl\lpter VD 'The Pure Theory of Law'·
154 JURISPRUDENCE

the present acute international conflicts. The possibility of a world fi d

very remote, at least, in the present state of affairs. However, things eration is
developments take place not on 'a priori' theories and· logical prop appen anc1
on events which are sometimes unforeseen and unpredictable. The~~Ibons but
the future of the state would be, cannot be predicted with great cer~re, What
ty.