Another theory that the State is a monistic entity with a will and power of its own, distinct from and existing above the wills of the individuals composing it, is the Juristic or juridical theory of the personality of the State. It was expounded by the jurists and in its extreme form by the German jurists, at the end of the 19th and the beginning of the 20th century. They were Gierke, Treitschke, Bluntschli, Jellinek and the English jurist, Maitland.
In the eye of law, the individual is a ‘person’ in the sense that he has a will, rights and duties; he can do something which law recognises as his ‘right’. Jurists have also long recognised that there are certain “artificial” persons, such as corporations, which have some ‘rights’ and ‘powers’ recognised by law. The ‘artificial personality’ of the corporations is, however, a legal ‘fiction’, useful in its own way. But some of the jurists, especially the German jurists, have further asserted that the State is a juristic or juridical personality, endowed with a will, rights and powers of its own.
The State, according to them, has a will of its own and can act in the same way as does a human being. The will of the State is distinct from the sum of the wills and interests of the individuals composing it. Moreover the personality of the State is not artificial or fictitious but real, just like the real personality of an individual. So the State is a super-person, a group- mind. The advocates of the Personality Theory illustrate the real personality, will and rights of the State by referring to fact that it owns property, enters into contracts directs economic enterprises, and can sue or be used in law courts.
Merits of the Personality Theory
If understood in a proper sense, the theory has elements of truth in, it. The State is an association. Like some juridical associations, which are called corporations and are legally endowed with rights and duties as corporate bodies, the State is also regarded as a corporation endowed with rights and powers. In this sense, it is a far more important corporation than others, for its legal personality determines the rights and duties of all other corporations The State has rights, powers, interests and will, which are not the rights, interests or wills of the individuals who compose it The State owns property, enters into contracts, collects taxes, undertakes economic enterprises, takes loans and does many other things in its corporate capacity. Moreover, these powers are not fictitious but real. These are not merely created by law, but exist because the State is a sovereign association. Defects.
The chief defect of the Personality Theory is that it regards the State as a real personality, existing over the wills of the individuals who compose it. The corporate nature of the State is a fact, but this fact does not make it a real personality, acting and willing like a natural personality, as that of a human individual. The will of the State is in fact the will of those who govern it; and to speak of the rights of the State is really to speak of the rights and duties of those who govern it. The Personality Theory, therefore, neglects the distinction between the State and government. The State is not a super-person, or a group-mind, which are mystical terms, difficult to explain.
Moreover, the theory views the State from the standpoint of the jurists. Its method is juridical method, which is based on analogy. But the State is more than a legal personality It is a social fact, a historical product, and a political institution The State has unity, but it is not an integrity Its purposes and ends are not its own, but those of its members. It may be remarked that the Personality Theory is also advocated by the idealists, but in philosophical sense of group-mind and a real or collective will.
Conclusion
We have discussed three monistic theories regarding the nature of the State each of them contains a modicum of truth. But none of them explains the nature of the State wholly and scientifically, and, therefore, is not acceptable in its totality The chief defect of these theories is that they are based on some analogy and are expounded from a definite point of view Idealist theory says that the State is an idea, the Organismic theory says that it is an organism and the Juristic theory compares the State to a personality Such an explanation vitiates their conclusion. Each of them provides us with a narrow view of the nature of the State, which is, however, a very complex phenomenon. Its nature has both monistic and pluralistic elements.
The State is not merely an idea, an absolute concept, a legal fiction, a juristic personality, a living organism; it is more than any of these descriptions. It is all of them and more the State is partly an organism, and partly a mechanism. It is both a legal and a moral personality. It is partly an idea and partly a social reality. It is an association for various ends and purposes. It is a product of history and an institution for the realization of ethical ends. It is a legal order and a social organization of classes. Finally, it is a human institution which is based on force and will, because it is a legal order for social co-ordination.