The presented fragment is an excerpt from: Prawo polityczne ogólne z uwzględnieniem austryjackiego razem ze wstępną nauką ogólną o państwie(1877-1881)
The people and the country are merely the basis of a state, but do not create it. The heart of a state is state authority, which binds the country and people into a single organism. State authority [...] has two meanings: objective and subjective. In the objective sense, state authority means all the rights to rule, by which the state serves its citizens, whereas in the subjective sense, it is a representative of supreme authority.
The state, like all legal persons, is abstract. In order to work and fulfil its duty, it requires physical persons embodying its will, acting on its behalf and executing state authority in the objective sense. The duty of executing supreme rights can be assigned to either one physical person or a group. They become the organs of the state. Each state has a number of organs subordinate to one another. State authority in the subjective sense is embodied in the organs that are dominant and exercise the supreme state rights. However, the continuance of state authority is independent from the physical being of its temporary representatives. The whole state organisation can change, monarchy can be replaced by a republic or the other way round, yet the state will always have supreme authority [...].
State authority is characterised by the following: 1) state authority is the supreme earthly authority (suprema potestas), thus independent from any other higher authority. However, the independence is not absolute. The law of nations, joining all states in a legal order, does not contradict the essence of state authority, similarly to constitutional constraints that limit the execution of supreme authority within the state. Therefore, in union states, the virtue of state can be assigned to its constituents, although in key matters belonging to the attributes of public authority, e.g. foreign affairs or military, they depend on the union, such as federal or semi-sovereign states. Thus, semi-sovereignty is a possible relationship. Supreme authority can be divided into two types: external, referred to as sovereignty, and internal, referred to as complete authority. Only a perfect state has full sovereignty and complete authority. However, there can be cases of a state being fully sovereign on the inside, but subordinate to an independent state – such a relationship is referred to as semi-sovereignty.
2) It is uniform and indivisible. The presence of several supreme authorities that the citizens would be obliged to obey would contradict the idea of an organism, i.e. unity. Besides, the inevitable differences in orders would lead to confusion and disorder. An exception is the order in a federation or a union state in general. Some state obligations are to be fulfilled by the states in the federation, therefore it is necessary to clearly divide the duties on both levels, i.e. the rights and powers. The idea that state authority is uniform and indivisible is contradicted by a theory of separation of powers, which shall be discussed later.
3) State authority incorporates the highest dignity, referred to in the Roman official language as majestas.
4) Another characteristic of state authority is its eternity, i.e. it does not cease upon death or dismissal of the temporary holder, but rather transfers to the new ruler, provided that the state is not dissolved completely, because at any time it requires a personal representative [...]. So all states require provisions for such cases as the resignation of the current ruler or any hindrance to personal rule. Even if the new state authority holder can exercise power conditionally [...], this refers only to the individual, rather than the continuance and essence of state authority.
5) State authority is omnipresent, or – as wrongly referred to – omnipotent in the sense that it covers the whole territory and all state members. The extent to which individual human relations and activities are subject to state authority depends of the essence and rights of the state. There is no absolute measure.
6) Finally, state authority is non-responsible. This is a logical result of the supremacy of state authority, as responsibility assumes some higher entity to which one has to answer and which passes judgements. Yet, there is no power in the world above state authority. Whoever holds higher power, is the holder of supreme state authority. Besides, exercising responsibility is practically impossible and would be unfortunate to a state. For no one can force the one holding all state power to give in voluntarily to a sentence. Also, each attempt to hold supreme authority responsible would inevitably result in a fierce internal struggle. Only fallen authority replaced by new authority can, however wrongly, be held responsible, but this is never just, because state authority, while in power, is non-responsible, so its representatives cannot be held responsible ever later. Therefore, it is with terror that we reject such sentences as passed by e.g. Louis XVI of France or Charles I of England. On the other hand, all subordinate state offices are responsible before supreme authority for exercising their public rights [...].
The 18th century motto that the whole indivisible state authority should not rest in the hands of one person was asserted by Montesquieu in his Spirit of the Laws and put into action by the French Revolution bloodshed. Montesquieu stated that “[w]hen the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control [...]. Were it joined to the executive power, the judge might behave with violence and oppression.” Montesquieu’s theory, although assuming a complete personal separation of various functions in a state and entrusting them to different, independent organs, is undoubtedly wrong, because a state requires unity. It is correct only insofar as it presents various state functions. To substantiate his theory, Montesquieu refers to the need of securing political powers. However, the reason for the differentiation lies deeper and assumes that there are basically different tasks a state must fulfil and that each function will be performed better if the designated organ is organised accordingly to that particular task, which is a better solution than entrusting various tasks to the same organs.
Montesquieu’s opinion led to a false theory of the complete separation of powers and their personal representatives, which became the principle of the French public law and traits of it even entered more modern constitutions of European (e.g. Belgian) and American states. There are three kinds of powers, i.e. a legislature, an executive, and – some add – a judiciary. It is easy to prove that such a strict division and separation of uniform state authority is wrong and contradicts the organic nature of a state. 1) First of all, it is a sin against the need for unity in a state and turns a uniform authority into a diarchy or triarchy. With such torn state authority, a unanimous, joint action could be replaced with duality and interference, which would lead to anarchy. 2) It is not true that such a division has a practical application in the English state. 3) It is fallacious as it tears the judiciary away from the executive, whereas the judiciary is par excellence only the execution of laws, thus a part of the executive. 4) Furthermore, the legislature and law execution do not exhaust the whole state activity. 5) Anyway, such a division and the transfer of just one part of state authority to separate individuals does not protect freedom or exclude the possibility of representatives of two powers uniting with the purpose of oppressing the people. The separation will not be saved by provisional solutions aiming at state unity, such as Benjamin Constant’s intermediary authority, or administrative, supervisory or representative authority. Bluntschli was right to state that: “In the organic body, each organ has its right place, but none is equal to the others. Thus, the relation and the unity of the whole is maintained. The same applies to the state. If the supreme authority were truly equal, unlike in America, where it is only superficial, the duality and equality of supreme authority would result in destruction of the state. One cannot detach the head from the body to make them level without ending the person’s life.”
A correct differentiation of divergent directions of state authority is another case. The only certain thing is that the idea of differentiating divergent directions in state actions in more modern times, as the state progresses on the one hand, and its essence receives a deeper understanding on the other, should be perceived as a permanent scientific achievement. We have come to acknowledge that state authority is necessarily uniform, yet it has obviously various manifestations, so it requires the implementation of tools that would reflect the nature of its different functions.
However, this does not answer the question regarding the functions, namely whether the differentiation between the legislature, the government, and the court is in fact the best reflection of the natural differences between state functions. There are several views on that, another division that comes to our mind first as more appropriate is into the law making and the administration (i.e. as others would say, the legislature and the executive).
Law making consists in establishing a permanent legal and political order, whereas administration is law execution and fulfilment of all state duties in general. Law making results in general regulations necessary in various life directions, whereas administration executes and implements such regulations. In such a juxtaposition, however, administration should not be understood as a mere execution of the contents of the regulations. In terms of its origin, legislature is not the first state activity, as it was customs and tradition that informed the legal order before the law makers started regulating the relations consciously. At the present level of the legislature development, still not all life relations can be included in laws or general legal rules. So if the administration were merely to execute laws, a state would fail to respond to all matters whose nature goes beyond abstract regulations, e.g. diplomatic or transient, individual, temporary relations, and a state would not fulfil its task and authority would not be able to adapt to changing life needs. Thus, we can see that the state activity in which the executive (the administration) is set in opposition to the legislature cannot stop at merely executing the details of what is regulated by laws in general and abstractly. Implementing laws is indeed an important task of the executive, otherwise they would be just a dead letter. But this is not its only function. The process of executing laws is combined with the productive and creative work of the administration. Laws are indeed the expression of the supreme will of a state, which the administration cannot object to. But in the creative aspect of the administration, laws are merely a boundary, and the positive stimulus is public welfare, the state and social interest or the appropriateness, which no law can express. Rather than being positively shaped and directed by laws, its activity is usually negatively constricted by the legislature, and its task – rather than enforcing laws – involves carrying out activities without breaching the laws. Its inherent right is to do everything the public interest and welfare require in each case [...].