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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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