Understanding Law and the Rise of the Modern State

Posted on May 21, 2026 in Philosophy and ethics

What Is Law?

Law in the current conception, according to the fundaments of the present legal-political regime, is “that norm of a coercive nature, that is, backed by the apparatus of state power”. This formal property (coercive norm) distinguishes it from other norms: moral, social, religious, protocol, etc. However, we can imagine several cases where there is a legal obligation without coercion:

• Public International Law: There is no world state that can impose international legislation, but there is a measure of law applicable to international relations (e.g., a treaty or international custom).
• Roman Law: Ancient Roman law was created by private judges elected by the parties in dispute. Political power only intervened to enforce the law, not to create or define it.
• Current spontaneous compliance with legal obligations: 99% of contracts are fulfilled because the agents understand that they must comply with them. For example, a contract for the sale of a coffee or the payment of a service to a professional. State coercion rarely acts in the vast majority of legal obligations.

Therefore, from a more essential point of view, taking into account the entire historical development, Law is the obligation that I owe and that is owed to me out of justice. However, Law is often confused with legislation. But the essence of Law is legal obligation, not coercion. Coercion is there to help fulfill the legal obligation.

The Rule of Law

There are two meanings of this expression:

• A. In the modern, state-based conception: The expression is redundant, because all law is state law, and therefore every state is a state governed by the rule of law. The state exercises its power over a territory and population in accordance with its legal norms. If it cannot do so, then it is the state that fails (which is a “failed state”, e.g., Venezuela, Somalia), not the law. What is meant by this expression is that the state does not act arbitrarily, but according to given norms. But this—except in failed states or in the absence of a state—always occurs in every state. In North Korea, too, people act according to given normative guidelines. And in Western states, too, public administration often acts arbitrarily and without being subject to the law (for which one must resort to the courts). But that only ensures that we are in a legal despotism (the Law is what the despot says, but then he respects it) and not in a tyranny (what must be done is what the tyrant decides at any given time).
• B. In the traditional historical conception: Law—at least in its fundamental core—is something prior to and distinct from political power. In this sense, Law limits the Government of a given society, since Law is created and determined fundamentally outside of political will. Such a ruler is legitimized because he is fair, because he respects the Law. But therefore, the ruler cannot unilaterally determine or change the meaning of the Law. Therefore, if we speak of public international Law and not of international legislation, we mean that there is an internal measure of justice in international relations that is not at the mercy of political will or the naked power of each moment. On the contrary, Law limits the power of international subjects.

The Historical Origin of the State

The State has not always existed. Like every historical form, it has a specific origin. The State is the political form of (European) modernity that has since become universal. We cannot speak of a State before the 16th and 17th centuries.

1. Parastatal Forms

These are the antecedents of the State. They approach certain elements of the State without making the full leap to statehood. These are:

• The Papacy (plenitudo potestatis as a precedent of sovereignty). For the first time in history, power is conceived with a double characteristic:
  • As a thing and not as a relationship. Power is essentially: to make do, it is an influence, a relationship between two or more human beings, where one makes another do something or think something. For the first time in the plenitudo potestatis, power is conceived as a kind of magnet, a thing that exerts an irresistible influence.
  • In the confusion of auctoritas (socially recognized knowledge) and potestas (socially recognized coercive power). For the first time, what legitimizes (auctoritas) and what is legitimized (potestas) are understood as one thing, unified or confused. Both features will later pass into the state concept of sovereignty.
• Spanish Monarchy: Incipient concentration of resources due to the issue of reconquest. There is no feudalism (except in Catalonia). In medieval Spain, there is a political centralization in the King, but not administrative. Unlike the rest of Europe, in Spain an organized central power was gradually established, with modern features. With the Catholic Monarchs (15th century – 16th century) a Treasury was created, a permanent professional Army (the Tercios), a Police deployed throughout the territory (the Holy Brotherhood, predecessor of the Civil Guard), and itinerant royal judges. This organization of a stable, central, and professionalized power is a precursor to statehood.

2. Transition from Commune to Signoria

The Italian republics become personal governments which then leave behind a structure that remains: the stato. Italian cities were divided between rich and poor, Popolo grasso and Popolo minuto, supporters of the Pope or the Emperor (Guelphs and Ghibellines), and between different families (remember the setting of the drama Romeo and Juliet). So they decide to hire someone from outside the city to govern them temporarily. He brings his own team, soldiers, officers, etc. Over time, the Signore changes, but this administrative body that projects power over the city remains. For lack of another word, this body of people with a power that remains even if the holder of political power changes will be called what remains, what does not change, what is there: the stato.

3. The Protestant Reformation

Sola fides (no reason) and sola scriptura (no tradition). The social consensus based on religion is broken by Protestantism. A political form is needed that is based on itself, on politics itself (not on religion). Protestantism provides two elements for the emergence of the State:

• It breaks the common foundation of political life: the common religion. Politics can no longer be based on religion because that unity has been broken. Therefore, from now on, it will be political power that legitimizes itself (and not religion), even using religion as a mere instrument of power. In Protestant countries (England, the Protestant German principalities, Sweden, Holland, etc.) the old unity of political power and religion is recovered to the benefit of the former.
• The separation of reason and faith creates the autonomy of reason. The reason or meaning of the various sciences is based on themselves and not, ultimately, on theology. Law will be based on itself and not on the idea of Good or justice provided by religion, and so with mathematics, physics, etc. The same with Politics: the criterion of politics will no longer be moral, given by religion, but power itself. On the other hand, the denial of tradition and free examination (everyone is free to read the Bible and interpret it as they wish) feeds modern individualism and subjectivism, promoting a group of individuals who think that each one has the truth and are reluctant to accept a source of truth above their subjectivity (the masses) and an omnipotent power above them all (the State).

The Systematic Sense of the State

State Monopolies

• Sociological definition: “The State is that association that (successfully) exercises the monopoly of legitimate physical violence within a given territory” (Max Weber). The most obvious and distinctive external characteristic of the State is that it claims the monopoly of legitimate physical violence, thus implying a monopoly over weapons (e.g., excluding dueling and administratively controlling gun ownership, in contrast to the United States, which formally and legally is not a State).
• Legal Monopoly: The State is the only one that can produce law; it is therefore characterized by a monopoly on the production of legal norms.
• Money Monopoly: The State is the only one that creates and imposes a legal tender. With the digital euro projects, this financial control of society would be expanded, as it would be directly transparent to the State and could be programmed, allowing it to directly configure the consumption and investment of all agents, with all that this entails.
• Monopoly of legitimacy: The monopoly of conflict, through bureaucracy. Bureaucracy is necessary for managing the treasury and the army. It is a regulated and hierarchical form of administration distinct from that of medieval ministerial officials or “civil servants,” whose function is based on a relationship of service, and from mere administration in general. Bureaucracy separates function from the individual, since the bureaucrat’s sole criterion is that of the law and regulations. The bureaucrat is an example of how the State politicizes and depoliticizes. It politicizes the people who represent it and then neutralizes them by depoliticizing them (Dalmacio Negro).

The Principle of Sovereignty

Sovereignty is the ultimate decision on everything, potentially, an authority that provides an answer to every possible problem. It is the ultimate authority that can potentially decide everything. It is an immanent omnipotence. The State was born in the 16th century to establish an end to political conflict in an effective way, not in the name of justice, truth or reason, but in the name of power. Auctoritas, non veritas facit legem, Hobbes would say (Power and not truth makes the law). It is an omnipotence (power without limits, absolute) but not proper to God. State: “mortal God” (Hobbes) Omnipotence.

The Nature of the State: Neutrality

Neither objectivity nor personalism. The State tries to be above each party. It resolves political problems (and moral, existential, etc.) by neutralizing them. It increases the role of technology, which is neutral. It allows doing contrary things at the same time.