Introduction

pp. 1-11

in: William E. Conklin, The invisible origins of legal positivism, Berlin, Springer, 2001

Abstract

Since the Renaissance, societies have been organized with the sovereign state as the centre. Internally, the authority ofthe sovereign state is plenary. In the exercise ofthis authority, the state may define who is a legal person, assign rights and duties to the person, create or terminate legal relationships between the persons, and prescribe social behaviour in terms of legal norms. The legal norms enclose social behaviour inside conceptual boundaries. The enclosure is potentially total. Ultimately, the institutions of the state may coerce one to comply with the normative prescriptions. And, in the coercive act of a state institution, much good may be accomplished as well as much evil. Concerning the latter, persons may be incarcerated, tortured, cleansed of their citizenship, expelled from their territory, and executed; their property may be confiscated and their means of a livelihood terminated. Publicists and teachers redefine social events from the viewpoint of the state, and the new political leaders and legal officials displace the old Founding Fathers with new Founding Fathers whose intent legitimizes all acts of government officials. The laws of the state are said to bind all persons who live within the territorial boundaries of the state. The substantive content of a law remains authoritative despite the apparent injustice of the content. No institution — neither a religious institution nor political party nor a corporation — possesses the authority to posit and enforce binding laws unless the state's legal institutions have authorized such authority. The state alone possesses a monopoly of force: no social organization may impose force without the authority of a state institution.