헌법이론의 논제로서 국가에 대한 헌법적 고찰— 독일 헌법이론을 중심으로 —

The subject of constitutional law is the state. But a precise determination of what constitutes the state presents considerable difficulties. For this an independent, legal interpretation of the state must be found. According to Georg Jellinek, the state is characterized by three elements: state territory, state people and state power. The three-element doctrine, however, can not give an answer to what makes the territory. The three-element doctrine can not provide an answer to what makes the three heterogeneous elements a unity. The formation of unity, understood by Smend as the primary purpose of the state, is interpreted as the process of self-formation of the state's relatives and as a result of political consent. According to Hermann Heller, the reality of the state is that the work of the individual for the sake of common goals is in fact coordinated. All authors determine the state as a unit. In different ways, all authors claim to grasp reality through the concept of the state. And all authors deal with the question of the legitimacy of the state. The constitutional theory is not concerned with constitutions of any content and any subject, not even any appearance of state. The constitution includes the internal organization and internal structure of the various public powers, their necessary connection and their mutual independence. Fully comply with the Constitution and that its rules exhaust and properly implement its provisions. Constitutional theory measures the content of the constitutional document in terms of the a priori constitutional ideal, but also of the material constitution to be distinguished from it, the effective legal constitution of the state. The state is a holistic idea that as such is neither empirically verifiable nor action-relevant. That they understood the monarchical institutional state to the exclusion of the parliamentary factor, that is, reduced the state to the executive, so that the concept of the state could be turned against the democratic principle. The younger state science, which focuses on the constitutional state, incorporates substance and method of constitutional theory. The renewal of state theory has not hindered the growth of constitutional theory. In a democracy, the state has no more than its constitution brings to fruition. The constitutional law must not protect, which does not correspond to the authority and the fundamental rights. The state is forbidden, which the constitution does not allow him. The state is the subject of the constitutional law.