
Contents
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I. Introduction I. Introduction
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II. Two Distinct Ways of Viewing the Relationship between Constitution and State II. Two Distinct Ways of Viewing the Relationship between Constitution and State
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1. The State as a Presupposition of the Constitution 1. The State as a Presupposition of the Constitution
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2. A Constitution Thought of Without the State: The Rule of Law Imposes its Vision of a Simple ‘Government’ of Public Affairs 2. A Constitution Thought of Without the State: The Rule of Law Imposes its Vision of a Simple ‘Government’ of Public Affairs
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III. State, Sovereignty, and Federalism: Can the State be Thought of as Anything Other than the Unitary State? III. State, Sovereignty, and Federalism: Can the State be Thought of as Anything Other than the Unitary State?
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1. Sovereignty as a Criterion of the State and the Tropism of the Unitary State 1. Sovereignty as a Criterion of the State and the Tropism of the Unitary State
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2. Federalism is Perceived Differently in the Two Constitutional Traditions 2. Federalism is Perceived Differently in the Two Constitutional Traditions
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IV. The State as an Institution: Asymmetric Treatment IV. The State as an Institution: Asymmetric Treatment
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1. Objectivization of Power by the State Conceived of as an Institutionalized Power (or Juristic Person) 1. Objectivization of Power by the State Conceived of as an Institutionalized Power (or Juristic Person)
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2. Institutionalization or Perpetuation of Power 2. Institutionalization or Perpetuation of Power
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3. The Impersonalization of Power: Rulers Represent the State 3. The Impersonalization of Power: Rulers Represent the State
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4. The Anglo-American Conception or the Non-Institutionalized State 4. The Anglo-American Conception or the Non-Institutionalized State
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V. Conclusion V. Conclusion
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Bibliography Bibliography
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12 Conceptions of the State
Get accessOlivier Beaud is Professor of Public Law, University Panthéon-Assas (Paris II) and Director, Institut Michel Villey
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Published:21 November 2012
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Extract
Introduction
The very title of this chapter, inviting us to address ‘conceptions of the state’ in comparative constitutional law, indicates the angle of approach: the aim is to examine the question of the state in the plural. And in assuming there to be more than one conception of the state, the editors clearly give us to understand that distinct constitutional traditions or cultures think of the state in different ways. Accordingly, the comparative outlook immediately introduces some form of ‘relativization’ or differentiation, inviting law scholars to desist for a moment from thinking that their own legal systems and states are universal phenomena.
Yet it is striking that classical textbooks on comparative constitutional law are seemingly unaware of this feature of the comparative outlook.1 For example, Giuseppe de Vergottini’s classic—a Standardwerk—has a chapter on the concept of state as if it were a natural category of comparative constitutional law notwithstanding the observation that the state is not recognized in the United Kingdom.2 Some recent studies, however, do break with this assumption that there is just one single conception. Élisabeth Zoller argues that public law, and so the state, too, is thought of differently in France and in the United Kingdom and the United States.3 Similarly, in her recent textbook, Marie-Claire Ponthoreau writes that ‘The legal concept behind the word “state” does not have the same consistency from one legal order to another’.4 But ultimately, can we not be a little more radical in the treatment of our subject matter and consider that in constitutional law there are jurisprudential traditions in which the concept of state is not a central feature. Might we not venture even that in some countries there simply is no conception of the state?
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