Theses on the Constitutional State
“Thank God we live in a constitutional state, because here the state can’t just do what it wants to you.” This praise of the state translates the fact that the state is subject to legal supervision into protection of the citizens from the hands of the sovereign.
The fact that the constitutional state is constrained by the law is generally thought to be a restraint on the state, because the state’s actions are subordinated to an even higher law, which keeps it in check. However, the state itself guarantees the authority of the law with its power. If, however, it is the state, and only the state, that enforces the law, then the law, and thus its substance, is also its creation. The alleged restriction of the state by the law is therefore not a restriction, because the law neither stands above the state nor independent of it, but results from its actions. Laws are not obstacles to the state, but the way the state exercises its rule over the country and its people.
Here, the state is praised for the fact that it can’t do everything one fears to a person. Something beneficial about the state is not positively emphasized, but the good thing about it is that it restricts a power that not even the state’s admirer is happy about: the state’s power to “do anything it wants” to its subjects. This praise of the constitutional state boils down to the fact that, although it could harass people according to its whims and desires, it harasses them according to certain – self-decreed! – procedures. Somewhat modest praise!
It is also suspicious that this praise of democracy comes about only by comparing it with something “much more terrible,” measuring its achievement as a civilization by what it is not: the constitutional state is compared to “arbitrary government.” If – following the assertion – all the state’s actions are not judged by law, as in the constitutional state, the subjects are mistreated according to the whims and desires of a greedy and power-hungry despot. This comparison is nonsense. Every form of rule – from the darkest barbarism to the ancien regime up to democracy – has its purposes and claims that it forces on the ruled population; these purposes of rule are therefore neither arbitrary nor continually changing nor do they constitute a despotism that has no reason but profound evil. The constitutional state and the methods it forbids itself in exercising its rule are compared to something that does not exist; a straw man. On the other hand, the rule of law, by an absurd comparison to its mere opposite, is given an absurd definition, i.e. it is only the self-restraint of the state and nothing else – as if modern democracy does not have reasons of state from which reasons for constitutional procedures also arise.
Incidentally, democracy is no different from fascist or real socialist states in praising the rule of law. Those comparisons will not help in making the case for the constitutional state. At this point, it is noticeable that a good opinion of the state was held prior to the interest in justifying it, and the praise is owed to a biased point of view.
Anyone who praises the state for the fact that it doesn’t do “anything it wants” to its citizens is not only acknowledging that he is the subject of rule. He is self-consciously acting like the servant of rule that it has made him. The circumstance that one is subjected to rule is considered neither annoying nor criticizable, but is checked off, as if the only question is which type of rule one is to be bound under. And the appropriate answer is: the good person has finally found his proper form of rule; the citizen also has rights!
Rights do not protect the citizen from the whims of the state, but are the way the state exercises its rule. When the state orders a country and people to obey its laws and declares that it wants to judge them only in relation to the law, it documents that it does not want its exercise of rule to serve one particular interest in the society, but to stand above all interests which have to obey its law. It wants to serve the law and the order that it establishes with it.
“Laws, nevertheless, are necessary for living together.” This praise of the state turns the circumstance that the state subjects people to laws into a service for them to live together.
If people need rules for cooperation, these rules are in their interest: the rules exist for them to pursue a common purpose. Such rules, however, are their means and do not have to be imposed on them by force. For these types of rules, a state, a higher authority, is not needed.
If the state organizes the cooperation of the people with its laws, then it uses its force apparatus (the police, judiciary) to enforce its rules against the people. Then the rules do not arise from the interests of the people, but limit their interests. Such rules are not simply about “how something should be organized,” but about a force relation in which the state subordinates the interests of the people and, as a higher-standing body, executes its purposes.
If people need subordination under state regulations, thus restrictions by the state for living together, then the regulated thing, the living together of the people, is not their project, but that of the state. The so-called rules of the society are the reasons of state which the people have to serve.
“People need the state because they would torment each other if the law did not restrain them.” This praise of the state turns the circumstance that the state requires people with all their antagonisms to submit to the law into a means of civilizing them.
In this praise of the state, the human is assigned two contradictory characters. On the one hand, the human should be the one who thinks only of murder in his doings. On the other hand, the human is represented as the one who needs the state. The state should serve the human by preventing him from reaping havoc. If that, however, is the service that the state performs for humans, then tearing themselves to pieces is also not in their interest. On the other hand, there must also be humans who do not want to murder and pillage, but who call for the taming of the others. So the side of humans that is praised is only the flip negative image of the other. The state’s praise singer must accept the next question: “humans are now beasts or the opposite of beasts?”
In this praise of the state, the need for the state is justified by a human nature which demands subordination under the law. However, if a human is someone who sees the need to suppress his inner beast, then he doesn’t need a force over him to tame him. If he is the type that only wants to attack others, then he doesn’t want a force to stop him – completely apart from the fact that the law doed not prevent one single act of violence. Neither in the one nor in the other case is the state justified by an alleged human nature.
In this praise of the state, the “desire to reciprocally maul each other” is treated as an automatic human trait. Contrary to this tautology, which only gives “people are like that” as a reason for specific acts and motives, everyone knows that when a person attacks somebody else, he already has his reasons. He sees the other denying him something that he judges important.
In this praise of the state, this way of treating people is assumed to be a completely normal way of handling things. It refers to a “happy” situation in which people are obviously busy mutually denying each other their interests. The fact that the benefit of one is the harm of the other, however, can follow neither from a reasonless evil nature nor from the variability of interests. Rather, people must already have been placed in relations in which their interests are pursued in conflict with each other.
Apologists regard this conflict between everyone’s interests as so natural that they see the state as only a kind of reformatory.
In its laws, the state refers to the antagonistic interests between people. It defines the extent to which they may deny each other their means. In addition, putting restrictions on opposing interests (you may deny another person their means only this far and no further) is always at the same time permitting them (however, you may, this far). Both granting rights to opposing interests and restricting them is the doing of the state. It limits the conflicts of interest so that they can continue to exist.
The reason for the extensive franchising of social cooperation is the principle of property, to which the state commits its people.
With the law, the state does not decree some principle of social cooperation to its society, as is maintained in the above ideologies, but subordinates their cooperation to private property.
The state guarantee of property enjoys the reputation of being an arrangement that helps people make use of useful things (e.g., a bicycle, a computer, a toothbrush).
That the guarantee of ownership is not about protecting or enabling the use of nice things couldn’t more striking than when you go to the police to report a theft of, say, a bicycle. No police station in the world will give you a new bicycle for continued use. You can only hope that the stolen item of daily use will be returned by the local authorities. Vice versa, a title to property is not necessary for the use of a thing. This is clear to any thief when he steps gleefully on the pedals and takes off. Use is a relation that only exists between the user and the thing that has useful qualities.
The praise of property does not simply mean use, but thrives on the idea that it is not sufficient to simply use an appropriate useful thing. Rather, to use it one must secure the express right of disposal over it. And this is amusing, because the assumption is that one can use an object only if one owns it. However, property does not make possible the use of useful things, but the opposite: the right – independent of the relation to use – to exclude others who need the thing from using it. One must always acquire the right to a thing just so that one can use it.
Property, which is the exclusive right of disposal over things that others need, thus subordinates needs to the excluding power of property.
Private property, the private individual’s exclusive right of disposal over the social wealth on which others are dependent for their existence, also has something to do with use, but it is not a question of bicycles or computers, although it also has effects in the realm of individual consumption. Dependence on what belongs to others takes place on the terrain of the production and reproduction of social wealth. With the exclusive right of disposal over the means of production and therefore its products, wealth acquires the power to deny others their means of existence.
The state orders that everything answers to the excluding power of disposal of private individuals. The people are dependent on each other, so each disposes of means of excluding others. It is a matter of extorting the other with his dependence and getting rich this way. Then the benefit of one is the harm of the other. And because this competition consists in mutual exclusion and mutual injury, it presupposes not only a force that initiates it, but maintains it on a daily basis, giving the conflicts procedural form with its legal regulations and jurisprudence.