The Crisis of British State Theory

There is a crisis of state theory in British legal thought because both philosophers of law and public law theorists reject or avoid thinking about legal order in terms of the state as a personne morale , an entity in whose name officials act and which the individuals subject to its power have reason to regard as legitimate. The position is quite different in German legal thought in which state theory is central. I rely on Weimar legal theorist Hermann Heller's explanation that a crisis of state theory results when one neglects one of the two dimensions of the modern legal state that interact with each other in sustaining it and maintaining its legitimacy – the social dimension or how the facts of social life affect the content of legal norms and the legal dimension or how those norms shape the facts of social life. I show that this kind of crisis manifests itself in Britain because the topic of the state and its legitimacy is displaced onto other topics in ways that result in the same neglect, including by Heller revivalists at the LSE. This neglect explains the strange character of contemporary public law debate.