ABSTRACT
ONE OF THE most palpable obstacles to the practical execution of the descending thesis of government and law was the age-old demand that in order to be enforceable, and hence binding, the law must be not only in consonance with the tacit assumptions of the society to which it was to refer, but also, and perhaps more importantly, must be made in agreement and with the consent (explicit or implicit) of those who were to be affected by it. Only the most thorough acceptance of the doctrinal position of the theocratic ruler-whether pope, emperor or king does not matter in this context-was a presupposition for the realization of the thesis itself. Within a government which realized the feudal functions of kingship it was nevertheless possible to give some semblance of reality to that demand, namely the element of consent and agreement in the making of the law. Indeed, only in this context can one speak of ‘making’ the law: whereever the theocratic rulership was exercised, one can speak only of ‘giving’ the law, but not of its making. In other words, the theocratic forms of government and the populist forms were two different Weltanschauungen, each setting out from entirely different premisses. Feudalism could not in any way be theoretically constructed as a kind of populism, but that it contained a number of features which could be utilized in the service of populism, is the essential point.
