chapter nineFrom Law to Politics: The Genesis
of ‘the Modern State’
By theend of the middle ages the expansion of royal government
from its base in the administration of justice had identified the state of
the commonwealth with the state of the king. A number of factors
would then start to detach the idea of the state from both legal order
and specifically monarchical rule. The comparison and criticism (largely
by lawyers) of different countries’ laws and institutions, and a search for
the best and most durable state of a commonwealth, were fostered by
ancient rivalries like that between England and France, and by the wide-
spread religious strife of the sixteenth century. In the course of the
Reformation monarchical states took on moral responsibilities (e.g. for
the relief of the poor) which had previously belonged to the Church, but
they faced new challenges to their legitimacy from religious sects. The
wars of religion bred a conviction in some jurists that the one essential
requirement for the stability of a commonwealth was rule by a
sovereign, who need not be an hereditary prince, but must have absolute
power to make and unmake law. Such an insight might be termed a
‘fundamental law’, but this was the time when the model of ‘the state of
the commonwealth’ began to be transformed from a country’s legal
heritage to its political institutions, for arguments about sovereignty
formulated in legal terms proved to be resolvable only by the violent
exercise of power. King James the Sixth of Scotland and First of
England provides an example of a king who attempted to forge a new
state, in this case out of the laws of his two kingdoms, but he was
frustrated by the opposition of both countries’ parliaments, and helped
to provoke the temporary overthrow of monarchy in Britain. If ‘the
modern state’ is anything more than the body politic in an arbitrarily
demarcated ‘modern’ period of history, it must be the state that came
into being in the religious conflicts of the sixteenth and seventeenth
centuries, when it lost the qualifications ‘of the king’ and ‘of the king-
dom’. It was thus left a permanently ambiguous concept signifying
either the whole commonwealth orthe sovereign authority which gave
the commonwealth its laws and transacted business with other
‘sovereign states’ on its behalf.