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48 Der Staat 1 (2009)

handle is hein.journals/destaat48 and id is 1 raw text is: IN DEFENCE OF STAATSLEHRE Von Martin Loughlin, London I. Introduction From the moment Georg Jellinek brought the disciplines of Staatslehre and Staatsrechtslehre to maturation in his Allgemeine Staatslehre (1900), the foundations of the sciences of the state have been subject to attack. The causes are various. One obvious reason is that, having flourished in the era of Wilhelmine Germany, these sciences had been tainted with brush of absolut- ism. But there are others, such as the fact that the state, especially in the Ger- man tradition, has often been thought of as an aspect of reality, or at least as an entity possessing metaphysical foundations. These attacks became more insistent in the second half of the twentieth century. During the post-war period many German jurists have celebrated what has been called the pro- gressive dethronement of the state sciences by constitutional jurisdiction'. With the establishment of a liberal-democratic constitution and the gradual extension in authority of the Bundesverfasssungsgericht, many jurists now argue that the substantial doctrines of state theory have been overthrown by the emerging, value-orientated constitutional jurisprudence of the court.2 During the last 20 or so years, however, this recently-acquired authorita- tive status of the constitutional framework has itself been contested. This new challenge has come about because of the growing range of governmen- tal functions now being exercised through supra- or transnational institu- tional arrangements. The globalizing effects of recent economic and techno- logical developments are now having a significant impact on governing, politics, constitutions and law. And these effects are today being registered not only at the level of state theory; they also touch the question of constitu- tional authority One manifestation of the emerging crisis has been the plethora of writing either extolling or lamenting the present state of affairs and promoting no- * Professor of Public Law, London School of Economics & Political Science. 1 Bernhard Schlink, Die Entthronung der Staatsrechtswissenschaft durch die Ver- fassungsgerichtsbarkeit, Der Staat 28 (1989), pp. 161 172. 2 See, in particular, the analysis of Josef Isensee, Staat und Verfassung, in: Isensee/ Kirchhof (eds.), Handbuch des Staatsrechts der Bundesrepublik Deutschland, 3rd edn. 2004, Vol. 2, p. 3, esp. pp. 7 17.

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