The Juristic Theories of Krabbe

Extract

The doctrines of H. Krabbe, professor of public law in the University of Leyden, are to be found in his Die Lehre der Rechtessouveränität, published in 1906, and his Die moderne Staatsidee, the second edition of which appeared in 1919.

The political theory of Krabbe resembles that of Duguit in that it denies law-making power to the state, and recognizes law (as defined by himself) as the ruling power in human society, as sovereign, and, therefore, as above the state. However, as will presently be seen, Krabbe places the state upon a much higher plane than does Duguit. To Duguit, political rulership is nothing more than the bald fact that, in a given community certain persons, for some reason or other, possess and exercise, actual power of control over the actions of the other persons of a group. It is, as it were, an objective fact which cannot, and need not be, ethically justified. To Krabbe, upon the other hand, the state is, in essence, a community of persons unified by the general agreement of its members as to the valuation of public and private interests, and possessing organized instrumentalities for clarifying and formulating these common convictions, and, when necessary, enforcing them. To Krabbe, the state thus plays a necessary part in the declaration and enforcement of law, if not in investing it with essential validity as such.

We find, however, in Krabbe, and also in his translators, as will be later pointed out, that same mistaken idea which is to be discovered in Duguit, that an inquiry into the idealistic or utilitarian validity of law, as determined by its substantive provisions and the purposes sought to be achieved by its enforcement, has a relevancy to, and that its conclusions can affect, the validity and usefulness of the purely formalistic concepts which the positive or analytical jurist employs.