NIEMEYER ON LAW WITHOUT FORCE

Authors

Josef L. Kunz, University of Toledo College of LawFollow

Abstract

Whereas Lauterpacht tried to determine the function of law in the international community, Niemeyer investigates the function of politics in international law. His book is on politics, but it is theoretical in its treatment and not political. The book not only represents an ambitious work, but is certainly interesting and stimulating. As to his ideas, Niemeyer derives from Herman Heller, to whom the book is dedicated. Heller's theory of the States is not a legal, but a sociological, a functional theory of the modern, occidental State as it developed since the Renaissance, a theory which stands halfway between Kelsen's "pure theory of law" and Carl Schmitt's "pure theory of power." Heller's starting-point is the nonexistence of isolated individuals, independent of social relationships. The social-political world is dialectically formed, a living thing and, therefore, a contradictory reality of human behavior. The task of his theory is to analyze the particular reality of the modern State, to understand it in its present structure and function. His theory, opposed to aprioristic norms of natural law, is not a theory for theory's sake. It is motivated by practical ends. His method is that of a cultural science of reality, his object of investigation the State as Gestalt, as a real structure, active in the social-historical world. All social reality is individual and collective effect in indissoluble dialectic unity. Heller conceives the State neither in an atomistic sense as a mechanism, composed of individuals, nor as an organism, but as organization. The State does not consist of men, but of human performances. The genus proximum of the State is organization, the differentia specifica, as compared with all other organizations, is its independent and supreme organization and activization of territorial social cooperation, and its justification lies in the fact that it represents the organization necessary for securing the law at a certain stage of evolution. While force is not an essential quality of law, the modern State has a State monopoly of legal physical force. That is why the summit of the organization represents the limit for securing the law by organizational coercion.

Recommended Citation

Josef L. Kunz, NIEMEYER ON LAW WITHOUT FORCE, 39 Mich. L. Rev. 1337 (1941).
Available at: https://repository.law.umich.edu/mlr/vol39/iss8/4