Beyond the Polis

In 1958, the future constitutional judge and Catholic philosopher of law, Ernst-Wolfgang Böckenförde, at that point 28 years old, wrote to Carl Schmitt that Rudolph Sohm's understanding of the law is “conceived entirely in terms of the modern, sovereign state, and has its basis in the anarchic status naturalis, which is overcome by law and the state.” ¹ The law, the young Böckenförde continued, is, according to Sohm, “the regulation of relations of will, which are understood as power relations, and must therefore necessarily emanate from a unified, ultimate authority [Instanz] and be coercive in character.” ² Sohm, as we have seen in the chapter on Radbruch, had famously argued in 1892 that the “essence of law is opposed to the ideal essence of the church. Just as the legal system is in harmony with the essence of the state, so it contradicts the innermost essence of the church.” ³ The essence of law lies in its ultimate end and purpose. Sohm described this end in his study of the development of Christian ecclesiastical law as the formation of a nation capable of protecting its citizens through coercive means. The law safeguards security and property by establishing a community of coercion that prevents a regression into the state of nature—status naturalis—which, for Hobbes, was a war of all against all where there exists no freedom:

The national community [Volksgemeinschaft] is a coercive community [Zwangsgemeinschaft]. The order of national life necessary for the preservation of the national community is the legal order [Rechtsordnung]. The national community is the source of law [Rechtsquelle]. It creates the state: the bearer and maintainer of the people's power. It generates property: increasing the power of the people through freedom. It generates secular authority and secular law [weltliche Recht]. ⁴