Edith Stein's Social Ontology of The State

STUDIA PHNOMENOLOGICA XV (2015) 303330
Edith Steins Social Ontology

of the State, the Law and Social Acts:
An Eidetic Approach
Francesca De Vecchi
Universit Vita-Salute San Raffaele
Abstract: In her Investigation Concerning the State (1925), Edith Stein takes
up some of the main ideas of the social ontology presented by Adolf Reinach
(1913), and develops a social ontology of the state, of the law and of social
acts. I argue that Steins social ontology is an eidetics of the state, the law and
social acts. Stein identifies the essential relations that constitute the state, the
law and social acts, i.e. pinpoints the parts upon which the state, the law and
social acts existentially depend as wholes. In doing so, Stein applies Husserls
account of wholes and parts to the social domain. I also suggest that Stein
outlines a regional ontology of sociality that embodies Husserls idea of regional
ontology. I focus on the intertwining of the wholes-parts relations, which char-
acterize Steins regional ontology of sociality, and argue that there are not only
necessary but also possible parts within the wholes. This makes Steins regional
ontology of the sociality a dynamic ontology.
Keywords: Eidetics, Regional Ontology of Sociality, State, Law, Social Acts.
1. Introduction
In her Investigation Concerning the State1, Edith Stein takes up some of

the main ideas of the phenomenological social ontology presented by Adolf
Reinach in his The Apriori Foundations of the Civil Law2, and makes the most
of them in developing a social ontology (soziale Ontologie) of the state (Staat),
1
Stein 1925.
2
Reinach 1913.
304 Francesca De Vecchi
of the law (Recht) and of social acts (soziale Akte). I argue that Steins social
ontology is an eidetics (Eidetik) of the state, of the law and of social acts (from
Steins phenomenological perspective it is quite consequent that an ontology
is an eidetics). Stein identifies the essential relations (Wesensbeziehungen) that
constitute the state, the law and social acts, i.e. pinpoints the parts (Teile) upon
which the state, the law and social acts existentially depend as wholes (Ganze).
In doing so, Stein applies Husserls account of wholes and parts to the social
domain.3
Stein also identifies the essential relations subsisting among the state, the
law and social acts. I suggest that, by focusing on an eidetics of the state, of
the law and of social acts, which pinpoints the essential relations constituting
the state, the law and social acts also as mutually interdependent parts-wholes,
Stein outlines a social ontology that embodies Husserls idea of regional ontol-
ogy (regionale Ontologie): accordingly, Steins social ontology is to be understood
as a regional ontology of sociality (i.e., a social ontology as one of the possible
material or regional ontologies).4 In my paper, I focus on the intertwining of
the wholes-parts relations of the state, the law and social acts which character-
ize Steins regional ontology of sociality.
In order to show this, I discuss seven core claims put forth by Stein on the
regional ontology of the state, of the law and of social acts: (i) The state is a
community (Gemeinschaft) that is characterized by sovereignty (Souvernitt):
the state must be its own master (der Staat muss sein eigener Herr sein), i.e.,
its actions and its law spring only from the state itself. (ii) Law-making acts
(Recht setzende Akte) are free-spontaneous-social acts. Free-spontaneous acts
can be both social and non-social acts: law-making acts belong to the class
of social acts. The only subjects of free-spontaneous-social acts are persons,
therefore the only subjects of law-making acts are persons: law-making acts
of the state can be performed by a single person (in this case the state is an
absolute monarchy) or by a collective of persons (Kollektiv-Personen) who rep-
resent (vertreten) the state, i.e. who are the organ (Organ) of the state. (iii) The
state is constituted by two counterparts: the state authority (Staatsgewalt), i.e
the organ (Organ) of the state, and the sovereign domain (Herschaftsbereich),
i.e. the citizens of the state. The organ of the state must be recognized by the
citizens in order to exist. The organ of the state performs representing social
acts which are also collective social acts. (iv) There are two types of law: pure
3
On the term Eidetics [Eidetik], see Husserl 1913. On the Towards a theory of Wholes
and Parts [Zur Lehre von den Ganzen und Teilen], see Husserl 1901, Third Logical Investigation.
Before Stein, Reinach had already applied Husserls whole-parts account to the social domain
and outlined a social ontology as eidetics, see Reinach 1913 and 1913/14. On Reinachs ap-
proach to social ontology, see Mulligan 1987, and in particular on Reinachs eidetic approach
to social ontology, see De Vecchi 2012, 2013, 2016.
4
See Husserl 1913: First Section, and in particular 9 Region and Regional eidetics (Region
und regionale Eidetik).
Edith Steins Social Ontology of the State, the Law and Social Acts 305
law (reines Recht), on the one hand, and positive law (positives Recht), on the
other; pure law is ontologically independent of individuals intentionality,
while positive law is ontologically dependent on individuals intentionality,
and, more precisely on law-making acts. Pure law and positive law have the
same content and function as essence (Wesen) and fact (Faktum) respectively.
(v) The sufficient condition for the positive law to be law in force is that the
claim (Anspruch) to regulate the behaviour of persons (the claim that is con-
stitutive of the law) be recognised (anerkannt) by the people to whom the law
is addressed. (vi) The necessary condition for the positive law to be law in force
is that the claim (to regulate the behaviour of persons) must be firstly made
by making law (Recht setzen): the legislator (a person or a collective of per-
sons) promulgates legal provisions which are directed to a range of persons;
the right to make law is the first law that must be made and recognized; legal
provisions (Bestimmungen) need to be completed by orders (Befehle). (vii) In
order for the positive law to be law in force, other state acts (besides provisions
and their entailed commands) can be a probable condition for the enforce-
ment of the legal provisions. These acts are: a particular proclamation of the
law, the interpretation and the assessment of the law.
In the second and last part of my paper, I focus on the parts-wholes rela-
tions constituting the state, the law and social acts as individual wholes, and
I consider the eidetics of the state, of the law and of social acts, singularly:
(a) The parts the state existentially depends upon as a whole; (b) The parts
the law existentially depends upon as a whole; (c) The parts social acts as law-
making acts depend upon as wholes. I will focus on the presence of not only
necessary parts but also of possible parts within the wholes (the state as a whole,
the law as a whole, social acts as wholes). This point, together with the inter-
twining of the essential relations constituting the state, the law and social acts
as wholes (i.e. the parts of one whole can also be parts of the other wholes,
and one whole can even be a part of other wholes) make of Steins regional
ontology of the sociality a dynamic ontology.
2. The Social Regional Ontology of the State, of Social Acts and of the Law. Seven
claims
2.1. First Claim
The state is a community (Gemeinschaft) characterized by sovereignty (Sou-

vernitt): the state must be its own master (der Staat muss sein eigener Herr
sein), i.e., its actions and its law (Recht) spring only from the state itself.
The state is a form of society. This is the starting point for quite divergent theo-
ries of the state. Actually, the fact that subjects live in a state, and have rather
specific functions in its constitution, will turn out to be a non-cancellable mo-

ment in the structure of the state.5
Stein begins her analysis of the eidetic structure of the state by focusing
on a non cancellable moment (undurchstreichbares Moment), i.e. on an es-
sential moment, of the structure of the state6: subjects live in the state and
have rather specific functions in its constitution. On the essentiality of this
moment for the constitution of the state, quite different theories of the state
converge on it by saying that the state is a form of society.
Steins problem lies in identifying which form of subjects living together
[Zusammenleben der Subjekte] is the own form of the state. Stein pinpoints
three possible types of living together: the crowd (Masse), the society (Gesell-
schaft) and the community (Gemeinschaft),7 and argues that the specific form
of living together which can found the state is the form of the community
(Gemeinschaft). In comparison with the crowd, the community is a form of
living together in which the subjects live in it as persons (as subjects who take
positions and perform acts). In comparison with the society, the subjects live
in a community also on the basis of affective experiences and not just on the
basis of rational decisions (as, instead, they do in a society: think, for instance,
of the decision to make a pact which is at the origins of contract theory).8
Moreover, Stein maintains that the state-community, compared with other
kinds of communities, is distinguished from them in virtue of the sovereignty
[Souvernitt] that is the essential characteristic (Eigentmlichkeit) of that
particular kind of community which is the state (Stein 1925, I, 1b).
2.1.1. Sovereignty. Stein defines the concept of sovereignty in two steps:

(i) She underlines the limited influence other communities can exercise on the
state: she argues that, differently from other types of communities, like fami-
lies and friendships, [...] with the state there is a limit to determinability by
5
Stein 1925, I, 1: 34; En. tr.: 1.
6
Stein entitles this first section of the book, in which she intends to identify the essential
moments constituting the state, The Ontic Structure of the State [Die ontische Struktur des Staates],
see Stein 1925.
7
Stein had already worked on the topic of the types of living together in her essay Indi-
vidual and Community (Individuum und Gemeinschaft), 1922. The three types of living together
pointed out by Stein represent a topic which Max Scheler (1913/1927 and 1913/1923), too,
dealt with, and, previously, Ferdinand Tnnies had written the book Gemeinschaft und Gesell-
schaft (1887). I do not dwell here on Steins single characterizations of each of these three types
of living together.
8
On the whole Steins argument in favour of the community as the most appropriate form
of living together which can found the state, and against the crowd and the society, see Stein
1925, I, 1a. It is worth noticing that Stein remarks that the proponents of contract theory
regard the state as being grounded in a pact among the individuals belonging to it and argue
for the society (Gesellschaft) as the form of living together which founds the state.
other communities [Bedingtheit durch andere Gemeinschaften]. This limit may

not be overstepped without destroying the character of state (Stein 1925,
I, 1b). In other words: the state can be conditioned and modified by other
communities up to a certain point, beyond which it is no longer a state.
(ii) Stein refers to Aristotle: Aristotle will speak of state wherever a num-
ber of persons has joined together into a community of life so as to form a
self-sufficient whole (Nichomachean Ethics, Book 5, 1134a). To define the
state as a self-sufficient whole, as Aristotle does, implies the concept of autar-
chy (Stein 1925, I, 1b: 10; En. Tr. p. 8). Stein suggests an interpretation of
the Aristotelian concept of autarchy by the modern concept of sovereignty
[Souvernitt]. What interests us in this citation, in our context, is the stipu-
lation of self-sufficiency (autarchy). [] What Aristotle meant by autarchy
can best be interpreted by the modern concept of sovereignty [].9
2.1.2. The state must be its own master. According to Stein, speaking of the
sovereignty of the state means that the State must be its own master. The forms of
the states life cannot be dictated by any power outside of the state itself.10 If the
state must be its own master, then the actions and the law of the state may spring
only from the state itself, and the law in force of the state must be traceable back
only to the state itself. It is an inalienable property of the state that its actions
and its laws originate from itself and not from any community standing under,
beside, or above it, and that in principle, all laws prevailing in its territory can
be traced back to it [].11
2.1.3. State and law. In order to investigate the problem of the sovereignty
of the state, which represents the crucial point in the constitution (Aufbau)
of the state, Stein focuses on the relation between state and law: the problem
of sovereignty can be clarified only if it is approached as the problem of the
relation between state and law [als das Problem des Verhltnisses von Staat und
Recht] (Stein 1925, I, 2: 32; En. tr.: 37).
2.1.4. The state as the author of law-making acts. The state is sovereign (sou-
vern) (it is its own master), if it is the author of its own law (Urheber seiner
Rechts). The state is the author of its own law if the state is the subject of
law-making acts (das Subjekt der Recht setzenden Akte), if it is a legal subject
(Rechtsubjekt) (Stein 1925, I, 2: 37). The problem is how the state can be
the author of its own law, how it can be the subject of law-making acts. This
problem concerns the specific nature of law-making acts and of their subject.
9
Stein 1925, I, 1b: 10; En. tr.: 9.
10
Stein 1925, I, 1b: 11.
11
Stein 1925, I, 1b: 12; En. tr.: 10.
2.2. Second Claim
Law-making acts (Recht setzende Akte) are free-spontaneous-social acts.

Free-spontaneous acts can be both social and non-social acts: law-making acts
belong to the class of social acts. The only subjects of free-spontaneous-social
acts are persons, therefore the only subjects of law-making acts are persons:
law-making acts of the state can be performed by a single person (in that case
the state is an absolute monarchy) or by a collective of persons (Kollektiv-
Personen) who represent (vertreten) the state, i.e. who are the organ (Organ)
of the state.
2.2.1. Law-making acts are free-spontaneous-social acts. Stein maintains that

law-making acts are acts which belong to the class of spontaneous, free acts, i.e.
they are acts characterized by a spontaneous performance of the ego (ein
spontaner Vollzug des Ich) (Stein 1925, I, 2: 35). Within the class of sponta-
neous free acts it needs to distinguish between spontaneous acts that are social
acts, on the one hand, and spontaneous acts that are not social, on the other:
these are respectively the cases of commanding, promising, asking, enacting a
law etc., and of deciding to do something.
Specifically, in order to be performed, a social act needs another subject to
whom the subject of the act refers, and who uptakes the act; this condition
is not required in the case of spontaneous (but not social) acts, such as an act
of decision that I can perform completely in my mind.12 Law-making acts
belong to the class of social acts.
Stein highlights the difference between social acts, which are addressed
to a specific person and are directed to the behaviour of a person, i.e. so-
cial acts which are heteroscopic, such as commanding, requesting etc.,
and law-making acts, which, although addressed to other persons, are not
directed to a specific person and to her behaviour, such as legal provisions
(Rechtsbestimmungen)13:
[Legal provision] differs from a simple resolve of will in the modality of the
effect. Here the effect is of a social nature and furthermore (in contrast to other
12
Stein very manifestly refers both to Reinachs account of spontaneous-social acts
(Reinach 1913: 3; see Schuhmann 1993) and to Pfnders account of the free will act (Pfn-
der 1911); moreover Stein had already worked on the free acts issue in her work on the motiva-
tion and the psychic causality (Stein 1922) (see Stein 1925, I, 2: 36). On Reinachs account of
spontaneous-social acts, see De Vecchi-Passerini Glazel 2012.
13
Reinach himself had already distinguished between social acts such as the commands and
the promises which are directed to a specific person, i.e. they imply a personal moment (see
Mulligan 1987) and social acts such as the legal provisions which do not entail this personal
moment and are only directed towards other persons unless a particular person is specified, see
Reinach 1913: 3. I return to this issue, see infra 5. About the term heteroscopic, see De
Vecchi-Passerini Glazel 2012.
categories of social acts, such as requests, commands and the like) not directly
aimed at the behaviour of particular persons. Rather, it merely prescribes a rule
for possible ways of behaving that are within a sector of persons.14
2.2.2. Persons are the only subjects of free-spontaneous-social acts and, there-
fore, of law-making acts. Free-spontaneous acts are acts whose subject is always
a person: Spontaneous acts are free mental deeds, and we call the subject of
such deeds a person.15 Therefore, if only a person can be the subject of spon-
taneous acts, and if law-making acts are spontaneous acts (spontaneous acts
that are specifically social acts), how can the state be the author of its own law?
Is the state a person?
In other words, the issue Stein addresses is the following: can only single
individuals be persons and, therefore, the authors of free, law-making acts, or
is it possible also for collective persons (Kollektiv-Personen)? If only a single
individual could be the author of the law of the state, the state would have
only the form of an absolute monarchy.
What needs to be asked is this: Must only individuals be considered persons and
possible authors of free acts, or does it also make sense to speak of collective
persons and to claim them as a law-making power? We have designated the
state as sovereign, thereby expressing that the state itself is the author of its
law. Is this merely a metaphorical way of saying that an individual person has
appropriated the states territory as a sphere of sovereignty (so that absolute
monarchy would be the only possible modality of the state)?16
2.2.3. Communal realization of free acts (gemeinschaftliche Vollzug von

freien Akten). According to Stein, the state is a unity of state authority
(Staatsgewalt) and sovereign domain (Herschaftsbereich), respectively the
subject and the object of the law. The state may be a unity of this kind only if
there is a sense to claiming the state as a whole [Ganzes) to be the author of
its acts. The state as a unity is possible only if there is a sense to claiming the
state as a whole to be author of its acts. That unity would be something other
than the absolute mode of statehood only if there is a communal realization
of free acts, [that is,] if an association of persons can be their subject.17 Now,
the problem lying at the heart of Steins idea of the state is how that unity of
the state can be something other than the unity of the absolute form of state.
Stein answers that only if there is a communal realization of free acts (ge-
meinschaftlichen Vollzug von freien Akten), which are in this specific case law-
making acts of the state, i.e. only if an association of persons [Personenver-
14
Stein 1925: 36; En. tr.: 44.
15
Stein 1925, I, 2: 37; En. tr.: 46.
16
Stein 1925, I, 2c: 37; En. tr.: 46.
17
Stein 1925, I, 2c: 37; En. tr.: 47.
band], and not just a single person, can be the subject [of the state], can the
state be a unity which has any form other than the absolute form of the state.18
2.2.4. The organ of the state: collective social acts and representing social acts.
It is important to analyze the feature of that association of persons (Per-
sonenverband) which can be the subject of free-law-making acts of the state (in
the case that the state is not an absolute state). These persons constitute the or-
gan (Organ) of the state. The state can execute acts only in that persons who
stand in for the state execute them for it. Yet such acts have a sense only as
acts of the state and not as acts of persons or of bodies that are not character-
ized as organs of the state.19 Thus, the answer Stein gives to the question of
how the state (in the case the state is not an absolute state) can be the author
of its own law is that the state can do so only if a plurality of persons, who rep-
resent (vertreten) the state, perform the law-making acts together, in the name
of the state. Two important issues have to be clarified here:
(i) The issue concerning the two fundamental counterparts constituting
the state: the organ (Organ) of the state, which performs the law-making
acts representing the state and is the state authority (Staatsgewalt), and the
sovereign domain (Herrschaftsbereich), i.e. the citizens of the state, who have
to recognise (anerkennen) the authority of the organ of the state and of the
law-making acts performed in the name of the state.
(ii) The issue concerning the act of representing the state performed by
a plurality of persons: what exactly does it mean that persons who represent
(vertreten) the state perform law-making acts in the name of the state?
2.3. Third Claim
The state is constituted by two counterparts: the state authority (Staats-

gewalt), i.e the organ (Organ) of the state, and the sovereign domain (Her-
schaftsbereich), i.e. the citizens of the state. The organ of the state needs to be
recognized by the citizens in order to exist. The organ of the state performs
representing social acts which are also collective social acts.
2.3.1 The two fundamental counterparts of the state: the state authority as
Organ of the state, and the sovereign domain as Glied of the state. The state is
an entity that is essentially composed of two parts, each of which is the coun-
terpart of the other: the state authority (Staatsgewalt) and the sovereign
domain (Herrschaftsbereich), i.e. the persons who represent the state, are the
agents of the law-making acts and constitute the organ of the state, on the
one hand, and the persons who are represented, are the addressees of the law-
making acts and constitute the member of the state, on the other.
18
See Stein 1925, II, c: 37; En. tr.: 4647. English translation modified.
19
Stein 1925, I, 2c: 38.
It pertains indispensably to the state to be structured as a state authority

and a sovereign domain. It is essential for everything that is an organ of the
state, which means everything that conducts transactions in the name of the
state, to have representative functioning, which means to stand for the state as
a whole. By contrast, that which belongs to the sovereign domain is indeed a
member of the state and is incorporated in its substance, yet not an organ in
which the whole is present.20
The organ of the state represents the state in its wholeness; it is a part that
stands for the whole and the state as a whole is present in this part of the state.
2.3.2. The recognition (Anerkennung) of the state authority (Staatsgewalt),

i.e. of the organ of the state by the sovereign domain (Herrschaftsbereich), i.e.
by the citizens of the state. The state stands in need of a person or a body of
persons in order to make itself heard. It needs a range of persons in order to
be perceived and to enter into existence.21 The represented people, i.e. the
citizens, must recognize the representative body, the organ of the state consti-
tuted by a plurality of persons: this recognition is crucial for the existence of
the law, for its creation and its efficacy. They could not obtain for themselves
the status of representative independently, but rather they receive it from the
state as sort of commission.22
Since we are characterizing the self-institution of the state authority as bound

up with a claim, this implies that it requires the recognition of those to whom
the claim is directed in order to become legally binding. The placet of those
who are to be represented expresses itself in this recognition. This placet
needs no longer be repeated in the acts of the representative body. Through
that body the claim that these acts be regarded as executed by the whole com-
munity, and binding for it, is satisfied.23
The organ of the state is a peculiar kind of plural subject: it is not just
constituted through a decision of its future members to constitute a group
which acts together in the form of the organ of the state;24 it is also constituted
by the decision of other persons (other than the persons who participate in the
group) to recognise it as the organ of the state. Thus the status function of
the organ representing the state is given from the citizen of the state.25 Only
on the condition that it possess such status function of organ of the state can
20
Stein 1925, I, 2c: 38; En. tr.: 48; emphasis mine.
21
Stein 1925, I, 2: 38; En. tr.: 48.
22
Stein 1925, I, 2: 38; En. tr.: 49.
23
Stein 1925, I, 2: 39; En. tr.: 4950.
24
The expression plural subject is by Margaret Gilbert: it is a crucial topic in the contem-
porary social ontology debate, see Gilbert 2013 and De Vecchi 2015.
25
Status function is an expression of John R. Searles account of social ontology, see Searle
2010.
this peculiar kind of plurality of persons perform law-making acts which pro-
duce a law in force, a law that is in its turn recognized by the citizens.
Stein dwells upon this moment of the hetero-constitution of the organ of
the state, a hetero-constitution that, however, needs the placet of the very state
members to endorse this role of persons representing the state in the organ of
the state.
2.3.3. Performing law-making acts in the name of the state. There are three
moments characterizing the agency of the law-making acts performed in the
name of the state by a plurality of persons: (i) The personal and spontaneous
act moment: law-making acts performed in the name of the state are acts
whose subject is the author of the act; (ii) The representing social act (vertre-
tende soziale Akt) moment: law-making acts performed in the name of the
state are social acts performed in the name of others; (iii) The collective social
act moment: law-making acts performed in the name of the state are social
acts performed by more persons together. Stein identifies these three moments
constituting the agency of the law-making acts performed by the organ of the
state in the name of the state: It should be noted what an ambiguous charac-
ter these representatives of the state have. On one side there are persons who
execute acts on their own initiative, and on the other, organs of the state which
perform transactions in its name.26 Therefore, persons constituting the organs of
the state (collective of persons) and acting collectively in the name of the state are
the three components of the law-making acts Stein identifies.
2.3.3.1. The personal and spontaneous act moment. Law-making acts are
personal and spontaneous acts whose subjects are persons who are the very au-
thors of such acts. They [the organs of the state] accomplish them [every act]
in the name of the state, but that can happen only inasmuch as the individual
persons as such give their placet to it.27 Law-making acts can be accomplished
by the organ of the state only on the condition that the persons who constitute
the organ of the state have decided to accomplish them: i.e. they must have
endorsed personally, each for herself, the decision to perform the law-making
acts. Therefore, the personal level of the personal and spontaneous act moment
is the level that grounds the entire structure of the agency of law-making acts.
Moreover, the freedom of the persons who perform the law-making acts
for the state must be preserved by the state itself. Only if such freedom is
guaranteed by the state, are those persons, who are the agents of the law-
making acts, able to perform the law-making acts. Thus, also the spontaneous
level of the personal and spontaneous act moment, founds, together with the
personal level, the whole structure of the agency of law-making acts: the two
other moments (the representing social act moment and the collective social
26
Stein 1925, I, 2c: 38; En. tr.: 49, emphasis mine.
27
Stein 1925, I, 2c: 39: En. tr.: 49.
act moment) are grounded in the personal and spontaneous act moment. In
order to be able to establish itself and make its law, the state must avail itself of
free persons, and cannot strip the persons who belong to it of their freedom.28
I will resume the crucial role of the personal spontaneous act moment in
the structure of the agency of law-making acts by saying that, according to
Stein, the more that law-making acts representing the state are accomplished
personally (i.e. from a personal level of their individuality) and freely, the
better such acts are accomplished; in other words, the more these persons
perform the acts as their own personal free act, the more such acts are acts of
the state. There is, therefore, a sort of paradox pointed out by Stein between
the personhood of the agents, which essentially characterizes the law-making
acts of the state, and the statehood of the law-making acts performed by the
persons who constitute the organ of the state.
2.3.3.2. The representing social act moment. Law-making acts are repre-
senting social acts (vertretende soziale Akte): they are acts accomplished by a
subject in the name of another subject.
Very likely, Stein has in mind here Reinachs account of social acts which
presents a possible variation of the eidetic structure of social acts in the form
of social acts performed by a proxy: representing social acts. As Reinach
himself states:
There is such a thing as commanding, informing, requesting in the name of

another. [] A command in the name of another is ones own command
and yet not really ones own command. More exactly: the proxy performs the
act quite personally, but in such a way that the act is presented as ultimately
proceeding from another person. [] [T]he command in the name of the
other, takes its ultimate origin in this person.29
Therefore, in the case of law-making acts performed by the organ of the

state, the organ of the state is the subject who performs the social act of prom-
ulgating legal provisions (Bestimmungen) and does it in the name of another
subject, i.e. in the name of the state. The organ of the state is a plural subject,
constituted by a plurality of persons: now, these persons, as we have just seen,
accomplish the law-making acts personally and freely. Reinach, too, high-
lights this point: the social act accomplished in the name of another person is
an act performed quite personally (Hchstpersnlich) by the proxy (Vertreter).
28
Stein 1925, I, 2c: 40; En. tr.: 52.
29
Reinach 1913, 3: 165; En. tr.: 25, emphasis mine. Reinach speaks of acts which are
performed by a proxy as one of the four modifications of the eidetic structure of social acts
(1. a pseudo-performance, a pale, bloodless performing of social acts; 2. Social acts being
conditional; 3. Collective social acts: social acts performed by a number of persons, and ad-
dressed to a number of persons; 4. Social acts which are performed by a proxy), see Reinach
1913, 3: 162165; En. tr.: 2225.
2.3.3.3. The collective social acts moment. Law-making acts are collective
social acts: social acts performed by a number of persons together. Here, too,
the reference to Reinachs taxonomy of social acts and of their modifications
is quite indispensable.
Reinach deals with the case in which social acts can be performed by a
number of persons [eine Mehrheit von Adressanten], and can be addressed to
a number of persons [eine Mehrheit von Adressaten].30 The case in which the
organ of the state performs the social act of promulgating a law is the case in
which a plurality of persons constituting the organ of the state performs the
social act of promulgating a law (bestimmen) together. Reinach describes the
structure of collective social acts in the following way:
We have to do here with the case where each of the persons performs the act
in union with the others, where each knows of the participation of the others,
lets the others participate, and participates himself: we have one single act which
is performed by two or more persons together, one act with several subjects.31
According to Reinach, the social act is performed collectively, by a plural-

ity of persons, if: each of the persons performs the act in union (im Verein)
with the others; each of persons knows of the participation of the others, lets
the others participate, and participates herself. Once these conditions are sat-
isfied, the collective social act is one single act which is performed by two or
more persons together, one act with several subjects.
Now, according to Stein, what are the conditions which have to be satis-
fied in order that the collective act of promulgating a law be realized? Is this
collective act, performed by a plurality of persons, one single act also accord-
ing to Stein? Stein does not explicitly affirm that it is one single act rather
than a number of acts with the same content which are performed together.
However, I suggest that, according to Steins perspective, which aims to show
how the state acts as a unity, the plurality of persons, who constitute the organ
of the state, and who perform the law-making act together, accomplish it as
one single act.
With respect to Reinachs account of collective social act, the peculiarity of
the collective act Stein focuses on is given from the specificity of the plurality
of persons who constitute the subject of this particular collective social act:
such plurality of persons is not a self-constituted plurality, but requires the
consensus of other persons.
This is the problem both of the two fundamental counterparts which con-
stitute the state (the organ of the state on the one hand, and the citizens on
the other), and of the recognition needed by the organ of the state from the
citizens of the state. I will focus upon this problem in the following pages.
30
Reinach 1913, 3: 164; En. tr.: 24.
31
Reinach 1913, 3: 164; En. tr.: 24.
2.4. Fourth claim
There are two types of law: pure law (reines Recht) on the one hand, and
positive law (positives Recht) on the other; pure law is ontologically indepen-
dent of individuals intentionality, while positive law is ontologically depen-
dent on individuals intentionality. Pure law and positive law share the same
essential, a priori, form of the law; if they have the same content, they func-
tion as essence (Wesen) and fact (Faktum) respectively.
Stein dwells upon the idea of law [Idee des Rechtes]: an explanation of
the idea of law is needed here, as a preliminary investigation. Law can be
spoken of in two senses: pure law and positive law32. By distinguishing
between pure law and positive law, Stein explicitly refers to Adolf Reinach and
his work on The Apriori Foundations of the Civil Law 33.
2.4.1. Pure law. Stein identifies three features of pure law:

(a) Pure law-states-of-affairs (Rechtssachverhalte) are existentially indepen-
dent of individuals intentionality: they are independent of individuals arbi-
trariness with respect to them, and are independent of individuals recogni-
tion of them in positive law.
(b) Pure law-states-of-affairs (reine Rechtsverhltnisse) are pure legal rela-
tions: they are a priori, i.e. necessary and universal, legal relations:
There are law-states-of-affairs, which subsist independently of any choice and in-
dependently of whether or not they are recognized by any law in forcethey
are pure legal relations: that any claim which arises through a promise expires
through performances; that it is wrong not to pay back a debt; and so forth.
(c) Pure law is eternal: Pure law is the same in all times and for all peoples,
for it is eternal and does not enter into existence here or there, or now or then.34
The three features of the pure law (independence of individuals inten-
tionality, necessity and universality, i.e. the a priori features, and eternity)
identified by Stein are quite consequent and coherent with Reinachs charac-
terisation of a priori law. Stein herself states her affinity with Reinach and
specifies that the sphere of pure law was first exhibited by Adolf Reinach
[]. The comments to follow are for the most part merely implications of his
comments (Stein 1925, I, 2: note 79; En. tr.: note 2, 38).
2.4.2. Positive law. Positive law is the law in force; it is created through free
and deliberate acts; therefore, differently from pure law, positive law depends
existentially on individuals intentionality. Besides that [pure law], there is
the law in force, the so-called positive law. Positive law is created or put into
32
Stein 1925, I, 2: 32; En. tr.: 39.
33
Reinach 1913.
34
Stein 1925, I, 2: 3233; En. tr.: 3839.
effect through deliberate acts [Willkrakte], and therefore can be as diverse as

you please.35
2.4.3. The relation between pure law and positive law: different content (In-
halt), same essential, a priori, form (Form) of the law. Positive law can deviate
(abweichen) from pure law: the content of positive law can be different of the
content of pure law. Nevertheless, even when they differ with regard to content,
they have the same form: they always share the same a priori structure of law.
So the question arises why the designation law is nevertheless applied to

both [and] whether its merely an equivocation. On this score, it must be said:
the discrepancy possible between pure and positive law involves only the con-
tent of discrete legal relations. But beyond that, theres something that can be
designated as the form of law [die Form des Rechts], as opposed to that content.
This is the a priori structure [Struktur] of the law as such. And it is common
to both pure and positive law.
In virtue of the form of law, which constitutes the a priori structure of

the law, pure law and law in force, which have the same content, function
as essence and fact, respectively. Pure law and law in force with the same
content are related as essence [Wesen] and fact [Faktum].36 The a priori form
of law consists in this: All law claims to regulate the behaviour of persons.37
This is the most important thesis on law defended by Stein: it is a thesis
that defines the law and the normative domain of the law as characterized by
only a regulative instance. The legal norms aim to regulate peoples behaviour.
Stein does not recognize the existence of a constitutive instance of the law,
such as the norms that constitute institutions or the rules of a game that create
the game itself.38
In order to understand this point, it is necessary to dwell upon the charac-
ter of legal provisions identified by Stein:
Enactments of law refer back to a subject who has enacted them and they refer
forward to something that ought to be. They have this character of provision
even if they are not clothed in the form of obligation. For example, according
to its form, the statement treason is punished by death is purely theoretical.
But according to its sense, and apart from what is asserted in it, it includes a
norm for the behaviour of the individuals who belong to its operative range
and especially for the behaviour of those charged with the responsibility of
upholding the law.39
35
Stein 1925, I, 2: 33; En. tr.: 39.
36
Stein 1925, I, 2: 33; En. tr.: 39.
37
Stein 1925, I, 2: 33; En. tr.: 39.
38
On constitutive rules, see Searle 1964, 1995, 2010; Conte 1988.
39
Stein 19125, I, 2a: 34; En. tr.: 41.
According to Stein, legal provisions refer back to a subject, who has en-
acted them, i.e. the legislator, and refer forward to something that ought to
be. This something that ought to be is properly the character of legal provi-
sions. Stein is convinced that even legal provisions which do not manifestly
have the character of ought to be, and therefore do not have the form of ought-
proposition, nevertheless, possess this ought to be-character. For instance, the
provision treason is punished by death is, according to Stein, a regulative
provision for it entails a norm for the behaviour of persons, precisely both
for the behaviour of the citizens to whom the norm is addressed and for the
behaviour of the persons who have to safeguard the law.40
2.4.4. Mind-independent pure law vs. Mind-dependent positive law. We can

elucidate the main difference between pure law and positive law by affirming
that according to Stein pure law exists independently of peoples intentionali-
ty, while positive law existentially depends on peoples intentionality and more
precisely on law-making acts (Bestimmungen). Positive law exists as such (as a
law which is in effect), only on the condition that individuals intentionality
recognise the claim to regulate the behaviour of persons which is the a priori
form of all law. Being in effect, which is proper to positive law, is a time and
space delimited mark of positive law. If a law is in effect, this means that
this claim [to regulate the behaviour of persons] is recognized. Being in effect
is something totally separate from the substance of pure law. Going into effect
is a mark of a temporal being, which begins and ends and, because of this, is
operative only within a certain range.41
2.4.5. Right Law and justice (Gerechtigkeit). Stein identifies right law
(richtiges Recht) with pure law (reines Recht), such that, if the state adopted
the right law as its positive law, then such positive law of that state would be
a right law and that state would be a rightful state, in which justice reigns.
The extent to which a state is a rightful state or not is measured according to
whether its positive law is a right law or not, that is, whether its positive law
concurs with pure law or not. The idea of justice is related to pure law. Where
pure law is in force, there justice reigns.42 Despite the affinity of Steins ac-
count of pure law with Reinachs account of a priori law, Steins account of
pure law and its relation with positive law differs considerably from Reinachs.
40
Reinach, too, had defined legal provisions (Bestimmungen) by the ought to be (Seinsollen)
character and argued that even legal provisions which do not have the form of ought-propo-
sition, such as Die Rechtsfhigkeit des Menschen beginnt mit der Vollendung der Geburt,
have the ought to be (Seinsollen) character specific of legal provisions, see Reinach 1913:
240241.
41
Stein 1925, I, 2: 3233; En. tr.: 3940.
42
Stein 1925, II, 2: 109; En. tr.: 150151.
Like Stein, Reinach deals with the idea of a priori structures (a priorische
Gebilde) of the law, which are universally and necessarily valid, independently
of any positive law. However, differently from Stein, Reinach does not identify
a priori law with right law. In Reinachs purely ontological frame, moral and
political values such as justice have no place: Reinachs a priori of the law are
mere laws of essence (Wesensgesetze), which concern solely the being of the law,
and which are neither bad nor good. From this perspective, moral values and
the a priori of the law are not connected, just as moral values and mathematical
entities (numbers or geometrical figures) are not connected. To make this point
clearer: moral predicates of the a priori of the law would make no sense, just as
moral predicates of numbers or of geometrical figures would make no sense.
Edmund Husserl presents very clearly the distinction between the idea of
the a priori of the law and the idea of just law which characterises Reinachs
a priori law account.
That which is completely unique to the work [The a priori foundations of civil
law], masterly from every point of view, lies in its recognition that this a priori,
belonging to the unique essence of any law in general, is to be sharply dis-
tinguished from another a priori that refers to all laws by means of norms of
evaluation: for all law can and must be placed under the idea of right law
[richtiges Recht]right from the standpoint of morality or some objective
expediency. The development of this idea led to a quite distinct a priori dis-
cipline, yet one that aims as little as Reinachs a priori legal doctrine at the
realization of the fundamentally mistaken idea of a Natural Law.43
According to Husserl the idea of the axiological evaluation of norms, i.e. the
idea of just law, is based on another a priori, no longer a legal but an axi-
ological a priori. Far from identifying right law with natural law, the idea of
just law is plainly connected with the issue of the evaluation of norms, thus
with the values that legal norms can and should embody, and with the issue of
an a priori different from the a priori of the law: the a priori which defines
the world of values, I could also say the material ontology of values, and which
should ground the idea of a just law.44 Now, Reinach does not deal with the
a priori of the world of values and with its relation with the constitution of
just law. In other words: Reinach tackles the problem of the existence of mere
legal a priori, a priori of a legal nature, and he does not focus on the problem
of the a priori foundation of just law.
On the contrary, Stein attempts to bridge the gap between a priori of the
law and just law by focusing on positive law. According to Stein the relation
43
Husserl 1919: 49 (1987: 303).
44
On the ontology of values, see Scheler 1913/1927. On the relation between values and
law, see the work on Wihlem Schapp who presents an account of the a priori foundations of
the law on values, see Schapp 1930, and about it, see De Vecchi 2016.
between the a priori of the law and just law subsists, and it is essential, if we
focus on the third and middle term of this relation: positive law and the evalu-
ation of its norms according to the axiological a priori which the norms of just
law embed.
2.5. Fifth Claim
The sufficient condition for positive law to be law in force (geltendes Recht) is
that the claim (Anspruch) to regulate the behaviour of persons (the claim that is
constitutive of the law) be recognised (anerkannt) by the people to whom the
law is addressed. All law claims to regulate the behaviour of persons.45 As I
already remarked, this is the most crucial thesis on law by Stein. According to
Stein, this claim is constitutive of the law: the essential character of law, which is
shared both by pure law and positive law, is to regulate the behaviour of persons.
By focusing on that claim, which is constitutive of the law, Stein identifies
the sufficient condition for positive law to be law in force (geltendes Recht): the
law is in force if the claim to regulate the behaviour of the persons is recog-
nised (anerkannt) by the persons to whom the law is addressed. If a law is in
effect, this means that this claim is recognized.46
It is worth noticing that in stating this essential condition for the law to be
in force, Stein applies to the law, and specifically to positive law, the relational
schema of social acts (as it was identified by Reinach) between the agent of the
act and her addressee. If the social act of promulgating the law (bestimmen) is
not perceived, understood in its content and recognized by its addressee, the
act is not executed: it misfires.47 All of Steins account of the law-making acts
and of the legal provisions aims to show the crucial importance of the rela-
tion between the agent of the law, i.e. the legislator, and the addressees of the
law, i.e. the citizens. In other terms, there cannot be a positive law, i.e. a law
in force, if the acts of the legislator and the legal provision he makes are not
recognized by the citizens in their claim to norm the behaviour of the citizens.
This is the reason for which Stein develops a very fine analysis of what the leg-
islator must do in order for the citizens to perceive and to recognize her laws,
as I show in the following paragraph.
2.6. Sixth Claim
The necessary condition for positive law to be law in force (geltendes Recht)
is that the claim (to regulate the behaviour of persons) that is constitutive of
the law must be firstly made by making law (Recht setzen): (i) The legislator
45
Stein 1925, I, 2: 33; En. tr.: 39).
46
Stein 1925, I, 2: 33; En. tr.: 39).
47
See Reinachs example of misfires of social acts: the command that is not perceived
(vernimmt) by its addressee (Reinach 1913: 3).
(a person or a collective of persons) promulgates legal provisions which are

directed to a range of persons; (ii) The right to make law is the first law that
must be made and recognized; (iii) Legal provisions must be completed by
orders.
2.6.1. The legislator (a person or a collective of persons) promulgates legal

provisions which are directed to a range of persons. The first necessary condition
in order for the positive law to be law in force is that the claim to regulate the
behaviour of persons (a claim that is constitutive of the law) must be firstly
made by making lawit must be enacted, exhibited, declared.
For the law to be realized, which means for it to be able to become an operative
law, that claim [to regulate the behaviour of persons] must first be made. This
can occur on behalf of its contentwith pure law, namely, or even for example
with ethical norms that are clothed in the form of law. It can also occur without
such a foundationstat pro ratione voluntas. In any case, it takes a person to
make the claim operative, as well as a range of persons to whom the claim is di-
rected and through whose recognition [of the claim] the law in question becomes
an operative law. To make the claim operative means to make law [Recht setzen]
or promulgate legal provisions [Rechtsbestimmungen ergehen lassen].
The claim that is constitutive of the law is made by making law: the legisla-
tor, a person or a group of persons (the organ of the state) promulgates legal
provisions which are directed to a range of persons. Through the recognition
of the range of persons to whom the legal provisions are addressed, the law
becomes a law in force.
It is very important to notice that, according to Stein, the claim is made
independently of the specific content of the law which is promulgated: any
law, independently of its content, entails the claim to norm the behaviour of
persons. As we have just seen, according to Stein, all law claims to regulate
the behaviour of persons: this is the a priori structure of the law.
Stein pinpoints three possible sources of the content of legal provisions:
they can be grounded in pure law, in ethical norms or in the mere will of the
legislator: (i) First, the will of the legislator can be grounded in the insight
of a value relation [Wertverhalt] that is demanding realization; in this case,
the will of the legislator emerges as the executor of an absolute Norm [als
Vorstrecker absoluter Normen]. (ii) Second, the foundation of the will of the
legislator can be pure law: the legislator promulgates as a legal provision what
pure law is. (iii) Third, the foundation of the will of the legislator can be the
self-establishing of something that is not valuable in itself but is merely felt to
be significant to me, or tempting for me, or the like, and is coveted by me.48
48
See Stein 1925, I, 2b: 36; En. Tr.: 4445, partially modified.
In any case, independently of the source of its content, for the claim to
be made, it is only necessary that the legislator makes the claim operative by
making law and addressing it to a range of persons who recognise the law.
2.6.2. The first law that must be made and recognized is the right to make
law. The first law that must be made and recognized so that further law
can attain validity is the right to make law [das Recht, Recht zu setzen]. Every
person who makes law thereby accepts the claim of this primary law. Indeed
[the prime law lays its claim] upon the whole range of persons to whom its
legal provisions are addressed, the range defined by that primary provision
[Bestimmung].49 The legislator who makes the claim (that is constitutive of
the law) by making law, i.e. by promulgating legal provisions, must make as
first law the right to make law: Stein points out in this way the necessary
condition concerning the authority which the legislator must have in order to
make law. This authority is defined by the law itself, as the first law that has
to be made.
2.6.3. Legal provisions must be completed by orders. The law-making act par
excellence identified by Stein is the legal provision (Bestimmung). It is by pro-
mulgating legal provisions, as we have just seen, that the legislator makes law,
and makes the claim that is constitutive of the law.
However, according to Stein, legal provisions alone are not able to reach
the goal they aim at: they are not able to be taken up and recognized by the
range of persons to whom they are addressed. Therefore, in addition to legal
provisions, another legal and social act has an important role for the claim
(constitutive of the law) to be declared to the persons to whom the claim is
addressed, and to be recognised by them. This is the act of command (Befehl).
Social acts in the category of the command [], where one subject has im-
mediate contact with another, do not take a back seat to provisions in the life
of the state. Provisions themselves, according to their sense, have need supple-
mentation by this other kind of act. Precisely because, as to their contents,
provisions have to do with the possible manners of behaving of persons, and
do not pick out any current behaviour of particular persons, there have to be
special acts by means of which the provisions are applied to the behaviour of
the persons for whom they are supposed to be operative.50
As Reinach already remarked, legal provisions do not have a personal mo-

ment in their content: they are generically addressed to citizens, but are not ad-
dressed to specific individuals. On the contrary, commands have this personal
49
Stein 1925, I, 2: 3334; En. tr.: 40.
50
Stein 1925, I, 2d: 4142; En. Tr.: 5354.
moment in their content: I command you do to something.51 Thus, com-

mands have the role of mediating between legal provisions (Bestimmungen)
and the behaviour of those to whom the legal provisions are addressed.
According to Stein, the understanding of the content of legal provisions
implies a command:52 First, every proclamation of a law implies a command:
the law-giver commands the persons of its sovereign territory to conform their
behaviour to the content of the statutory regulations.53
2.7. Seventh Claim
In order for positive law to be law in force, other state acts (in addition
to provisions and their entailed commands) can contribute to the enforce-
ment of legal provisions: they are possible parts of the provisions. These acts
are: a certain form of proclamation of the law [eine bestimmte Form der Ge-
setzverkndigung], a continual interpretation (fortlaufende Interpretation) of
the law and the assessment of discrete cases [Beurteilung der einzelnen Falle]
of the law. Both the legislation (Rechtsetzung) acts and the jurisprudence
(Rechtsprechung) acts are state acts of upholding the law (Rechtspflege).
2.7.1. Other state acts which are possible parts of legal provisions and can
contribute to the enforcement of legal provisions. The point Stein focuses on is
that the character of the provision implies the possibility that other acts (apart
from the command which, according to Stein, is necessarily entailed in any
provision) play the role of supplement and complement of the provisions in
order for provisions to be fulfilled, and therefore in order for the claim (which
is constitutive of the law) to be recognised by the citizens and in order for the
positive law to be law in force.
That command is entailed in every statutory provision. But besides that [basic
command], we have some other acts to look at here. There are acts that are
51
See Mulligan 1987.
52
On this point, Stein diverges from Reinach: both Reinach and Stein distinguish between
the legal provision and the command. Reinach argues that legal provisions must not be under-
stood as commands: After all, it seems to be plausible at first glance: legal provisions are norms
which the law-giver issues; and to say that he issues norms is to say that he gives commands,
prescriptions and prohibitions which are addressed to the citizens or to the executive organs of
the legal order. [] Legal provisions are in reality anything but commands; and the distinc-
tion between the two things forms the indispensable basis for understanding the issues which
occupy us here. (Reinach 1913: 242; En. tr.: 105). Stein, on the contrary, concludes that any
legal provision entails a command. On Reinachs and Steins different positions on the relation
between legal provisions and commands, see Schuhmann 1993.
53
Stein 1925, I, 2d: 42; En. tr.: 54.
not required in every case as a supplement for the provision, yet their supple-
mentary functioning is designated as possible by the character of provisions.54
As we have just seen, the essential structure of the provision always implies a
commandThat command is entailed in every statutory provision, i.e. the
command is a necessary part of the provision.
Moreover, the essential structure of the provision also implies other acts
as a possibility (and not as a necessity!), i.e. as a possible part of the provi-
sion in order for provisions to be fulfilled: acts that are not required in every
case as a supplement for the provision, yet their supplementary functioning is
designated as possible by the character of provisions. The possibility of such
supplementary acts is part of the essential structure of provisions because:
Legal provisions are there to be followed. That is how their sense is fulfilled.
The sense of legal provisions is that of being followed: if they are followed,
their sense is fulfilled. Stein here adopts the Husserlian relation between the
sense of an expression (Ausdruck) and its fulfilment by an act of intuition
(the Husserlian pairing of sense [Sinn] and fullfilment [Erfllung]: of
sense-giving acts or meaning-conferring acts [sinnverleihende Akte] and the
meaning-fulfilling acts [erfllende Akte], presented and discussed by Husserl
in the Logical Investigations) as a paradigmatic relation to explain the relation
between the sense of the provision (the sense of the provision which is also an
expression: a proposition, a sentence) and its fulfilment by the actions which
enforce the content of the provision.55 This relation is just a probable relation,
and never a necessary relation. In other words, in the essential structure of
provisions there is the expectation, the tendency, but not the necessity, to be
fulfilled (as, for instance in the sense of the expression dog, there is an ex-
pectation, and not a necessity, of fulfilment through the intuition, for instance
the perception of the dog in flesh and blood).
In this ontological frame characterizing the essential structure of the provi-
sion, Stein identifies some acts which can contribute to the fulfilment of the
provision: just because the provision tends essentially to be fulfilled, then there
could be some acts which can contribute to the realization of this tendency.
Such acts belong to the essential structure of the provision as possible or prob-
able parts and not as necessary parts: this is an essential relation of tendency
which concerns the fulfilment of the provision, and not an essential relation of
necessity (i.e. an a priori relation). Nothing is necessary between the provision
and its fulfilment: the provisions must not necessarily be fulfilled, they have
just the essential tendency to be fulfilled. On the contrary, everything is neces-
54
Stein 1925, 2d: 42; En. tr.: 54.
55
On Husserls meaning-conferring acts and meaning-fulfilling acts, see Husserl 1901,
in particular the First Logical Investigation. Stein adopts the sense-fulfilling paradigm also in
other works of her: see for instance Stein 1941.
sary between, for instance, the provision and the legislator who is the bearer
of the provision: without the legislator there is no provision.
Reinach, too, deals with this fine ontological point on the double nature
of essential relations, necessary and possible, and does it very clearly: on the
one hand there is the essential and necessary relation between, for instance,
the command and the obligation produced by the command, or the promise
and the claim and the obligation generated by the promise; on the other hand,
there is the essential relation of tendency, for instance, between the promise
and the realization of its content: promising tends towards the realization of
its content by the promisor.56
2.7.2. Three cases of infelicity of the provisions fulfilment. It is possible that

the fulfilment of the provision needs a mediation between the law and the
fulfilment itself of the provision. Stein identifies three possible cases of infe-
licity of the fulfilment of the provision which need the intervention of other
acts in order to help the provision to be fulfilled.57 [1] A legal provision
might not even reach the ears of everyone to whom is it addressed. [2] Fur-
thermore, it is possible for the provision to be perceived as to its wording but
not understood as to its sense. [3] Finally, the regulation could be understood
but without the insight that a particular case is covered by it.58 In order to
prevent such possible cases of infelicity of the provisions fulfilment, the state
must act in the following way: So the state, when issuing provisions and
commanding that they be followed, must bring it about that the provisions
[1] reach the ears of the citizens, [2] are understood by them, and [3] can be
applied to cases in practice.59
2.7.3. Three acts the state should perform in order to satisfy three tasks in
favour of the enforcement of its provisions. Stein points out three tasks the state
must undertake for the enforcement (Durchfhrung) of its provisions.
(i) The first task is to be attained through a certain form of proclamation
of the law (eine bestimmte Form der Gesetzverkndigung) that aims, at most,
to reach the ears of the citizens. The state can arrange it through commands
and provisions with this aim. This kind of command and provision is not
56
See Reinach 1913: 172173; En. Tr: 32. On the relation of tendency in Reinach, see De
Vecchi 2016. I identified another example of relation of tendency as essential relation in the
relation between values and law (e.g. the rational contract) in the phenomenology of law of
Wilhelm Schapp (see Schapp 1930 and De Vecchi 2015). I come back on the possibility and
necessity of the essential relations in the second part of the paper, see infra 2.
57
The idea of infelicity of the provision meant here as cases of non-fulfilment of the
provision is a variation on the theme of the infelicity of the performatives presented by Austin
(1962). However, it is worth noting that Reinach had already identified cases of infelicity of
social acts, though he did not refer to them by the term infelicity, see Reinach 1913: 3.
58
Stein 1925, I, 2d: 42; En. tr.: 5455.
59
Stein 1925, I, 2d: 43; En. tr.: 55)
addressed to all the citizens, but just to the persons to whom the state entrusts
the assignment of proclaiming the law.
(ii) The second task, to make the content of the provisions understood by
the citizens, is to be realized through continual interpretation (fortlaufende
Interpretation). The state itself must carry out this interpretation. If the state
left the interpretation up to private discretion, it would risk having some
other intrude between itself and its citizens. The state can arrange for the
activity of interpretation to be realized through the institution of agencies
charged with interpretation. This occurs in turn through commands and pro-
visions of the state. As Stein underlines, the activity of interpretation is not as
such a practical-free act, but, rather, a theoretical one: it has to do with purely
intellectual acts [rein intellektuelle Akte] in which the sense contentaccording
to its provisionsis fulfilled and made explicit.60
(iii) The third task the state must undertake for enforcing its provisions is
the assessment [Beurteilung] of discrete cases where they are to be applied by
agencies set up or recognized by the state, and the practical effecting of en-
forcement [Durchfhrung]. Also in this case, the activity of the state consists
in theoretical acts, rather than in practical-free acts. The work of the state
agency is a purely theoretical task: deciding whether a case falls under any
provision and, if so, under which one.61
2.7.4. Legislation and jurisprudence of the state. The interpretation of

provisions and the theoretical decision about particular cases which fall within
the domain of the applicability of the provisions can be characterized as ju-
risprudence (Rechtsprechung).
Stein contrasts jurisprudence (Rechtsprechung) and legislation (Recht-
setzung): the acts constituting jurisprudence are theoretical acts, while the
acts constituting legislation are practical-free acts. The theoretical acts that
make up the bulk of adjudication are not spontaneous in the same sense
that provisions are. What should be made into law is up to the discretion of
the law-making subject; what we come upon as law is independent of our
arbitrariness.62 In any case, both the acts pertaining to the legislation and
the acts pertaining to the jurisprudence are acts which serve the enforcement
(Durchfhrung) of the provisions and can be reckoned as acts which uphold the
law (Rechtspflege). All of these acts are acts belonging to the life of the state
(zum Leben des Staates gehrigen Akte) and are acts Stein focuses on in order to
identify the parts which are either necessary parts or possible (probable) parts
for the good functioning of the relation between the state and its citizens in regard
to the law. This relation, and above all the good quality of this relation, is what
60
See Stein 1925, I, 2d: 43; En. tr.: 56.
61
See Stein 1925, I, 2d: 43; En. tr. (modified): 56.
62
Stein 1925, I, 2d: 44; En. tr. (modified): 57.
lies mainly at the heart of Steins idea of the state. If this relation succeeds,
then the positive law of the state is a law in force: the provisions promulgated
by the organ of the state are recognized by the citizens, and through such rec-
ognition, the claim that is constitutive of any law is recognized, too.
3. Eidetics of the State, the Law and Social Acts as Individual Wholes
Depending on Both Necessary and Possible Parts
The eidetics of the state, of the law and social acts described by Stein turns
out to be a dynamic eidetics. Steins claims that I have been discussing have
revealed a regional ontology of the state, the law and social acts, characterized
both by the intertwining of the essential structures of the state, the law and
social actsi.e. the parts of one whole can also be parts of other wholes, and
one whole can even be a part of other wholesand by the presence not only
of necessary parts but also of possible parts within the wholes and the essential
structures they are constituted by. Now, from the landscape of regional ontol-
ogy, I return to the singular wholes of the state, the law and social acts: from
the social regional ontological net, I focus on the single social individuals on-
tological net, and I distinguish between necessary parts and necessary relations
constituting the wholes, on the one hand, and possible or probable parts and
possible or probable relations constituting the wholes, on the other. I show that
both necessary parts and possible parts are essential parts. This is a very signifi-
cant point of the phenomenological eidetics: eidetics is constituted not just
by classical a priori, necessarily and universally valid relations; the essential
relations between parts and wholes are also possible or probable relations, i.e.
relations of tendency, and the parts constituting the wholes are not just neces-
sary parts but also possible or probable parts.
3.1. The Parts Upon Which the State Existentially Depends as a Whole
3.1.1. The parts upon which the state necessarily depends as a whole: (i) The
living together of individuals (Zusammenleben der Subjekte): the form of indi-
viduals living together that is the own form of the state is the community (Ge-
meinschaft), and more precisely, the community characterized by sovereignty.
(ii) The law of the state of which the state must be the author. (iii) The law-
making acts of which the state is the author: legal provisions and commands.
They belong to the life of the state. (iv) The organ (Organ) of the state which
represents the state, makes the law for the state, and constitutes the state state
authority (Staatsgewalt); (v) The sovereign domain (Herschaftsbereich): the
citizens of the state who are represented by the organ of the state and must
recognize (anerkennen) the authority of the organ of the state, of its law-making
acts, and of its law. (vi) The state authority (Staatsgewalt) and the sovereign
domain (Herschaftsbereich) are two counterparts constituting the state as a

unity; they are the subject and the object of the law, respectively.
3.1.2. The possible parts upon which the state probably depends as a whole:
(i) Pure law (reines Recht): the state could adopt pure law as its positive law;
in this case the state would be a rightful state. (ii) The single person who is the
organ of the state, in the case of the absolute monarchy; (iii) A collective of
persons which is the organ of the state, in the case the state has any form other
than that of an absolute monarchy (constitutional monarchy, a republic, a
confederation, etc.). (iv) Acts upholding the law [Rechtspflege]: acts which the
state can perform in order for positive law to be law in force.
3.2. The Parts Upon Which the Law Existentially Depends as a Whole
3.2.1. The parts upon which the law necessarily depends as a whole: (i) Pure
law (reines Recht); (ii) Positive law (positives Recht) (law in force [geltendes
Recht]) which depends on the intentionality of individuals; (iii) The a priori
structure of the law (a priori Strukture des Rechtes), the form of law (die Form
des Rechtes) that is common to both pure and positive law: all law claims to
regulate the behaviour of persons [alles Recht beansprucht, das Verhalten von
Personen zu normieren]. This is the claim that is constitutive of any law. (iv) Posi-
tive law as law in force is a whole necessarily depending on: (a) the legislator,
i.e. the organ of the state, which is the author of law-making acts; (b) the ad-
dressees of the law-making acts: the citizens of the state to whom the law is
directed; (c) the claim (to norm the behaviour of persons) that is constitutive
of the law; (d) the provisions which are promulgated through law-making
acts by the legislator; (e) the commands which are entailed in the provisions;
(f ) the recognition of the claim that is constitutive of the law by the citizens.
3.2.2. The possible parts upon which positive law probably depends as a whole:
(i) Pure law: pure law can coincide with the positive law of the state: in this
case, positive law is the right law; (ii) Upholding the law [Rechtspflege] acts:
acts which the state can perform in order for positive law to be law in force.
They are: a certain form proclamation of the law [eine bestimmte Form der Ge-
setzverkndigung], a continual interpretation [fortlaufende Interpretation] of
the law and the assessment of discrete cases [Beurteilung der einzelnen Falle]
of the law. These acts can contribute to the enforcement of legal provisions.
3.3. The Parts Upon Which the Law-making Acts as Social Acts Existentially
Depend as Wholes
3.3.1. The parts upon which the law-making acts as social acts necessarily
depend as wholes: (i) Free-spontaneous moment of the acts: law-making acts are
free-spontaneous acts; they are characterized by the authorship of the acts,
i.e. the subject is the author of the act, and the act is a spontaneous perfor-
mance of the ego; (ii) Social moment of the acts: law-making acts are social
acts which are a kind of free-spontaneous act; (iii) As social acts, law-making
acts are wholes necessarily depending on: A subject who is the author of the
act; Another subject who is the addressee of the act and who has to uptake the
act; Uptake of the act by the addressee. (iv) Persons, who are the only subjects
of free-spontaneous-social acts, and therefore of law-making acts. (v) The or-
gan of the state (state authority) as the personal subject of law-making acts;
(vi) The citizens (sovereign domain) as the addressees of the law-making
acts; (vii) Legal provisions and commands which are specifically the law-mak-
ing acts. (viii) Commands, which are both autonomous law-making acts and
a necessary part of legal provisions. (ix) Two necessary moments of the agency of
law-making acts: (a) The personal and spontaneous act moment: personhood of
the agency of law-making acts; the law-making acts, performed in the name of
the state, are acts whose subject is the author of the act; freedom of the person
who is the author of the act. (b) The representing social act (vertretende soziale
Akt) moment: statehood of the agency of the law-making acts; the law-making
acts, performed in the name of the state, are social acts performed by a proxy.
3.3.2. The possible parts upon which the law-making acts as social acts prob-
ably depend as wholes. (i) One possible moment of the agency of law making
acts: The collective social act moment: law-making acts performed in the name
of the state are social acts performed by a number of persons together. (ii) Acts
which can contribute to the enforcement of the provisions: a certain form
proclamation of the law [eine bestimmte Form der Gesetzverkndigung], a
continual interpretation [fortlaufende Interpretation] of the law and the as-
sessment of discrete cases [Beurteilung der einzelnen Falle] of the law.
Francesca De Vecchi
Universit Vita-Salute San Raffaele
Via Olgettina, 58 20132 Milano Italy
francesca.devecchi@unisr.it
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STUDIA PHNOMENOLOGICA XV (2015) 303330

Edith Steins Social Ontology

Keywords: Eidetics, Regional Ontology of Sociality, State, Law, Social Acts.

In her Investigation Concerning the State1, Edith Stein takes up some of

2.1. First Claim

The state is a community (Gemeinschaft) characterized by sovereignty (Sou-

specific functions in its constitution, will turn out to be a non-cancellable mo-

2.1.1. Sovereignty. Stein defines the concept of sovereignty in two steps:

other communities [Bedingtheit durch andere Gemeinschaften]. This limit may

2.2. Second Claim

Law-making acts (Recht setzende Akte) are free-spontaneous-social acts.

2.2.1. Law-making acts are free-spontaneous-social acts. Stein maintains that

2.2.3. Communal realization of free acts (gemeinschaftliche Vollzug von

2.3. Third Claim

The state is constituted by two counterparts: the state authority (Staats-

It pertains indispensably to the state to be structured as a state authority

2.3.2. The recognition (Anerkennung) of the state authority (Staatsgewalt),

Since we are characterizing the self-institution of the state authority as bound

There is such a thing as commanding, informing, requesting in the name of

Therefore, in the case of law-making acts performed by the organ of the

According to Reinach, the social act is performed collectively, by a plural-

2.4.1. Pure law. Stein identifies three features of pure law:

effect through deliberate acts [Willkrakte], and therefore can be as diverse as

So the question arises why the designation law is nevertheless applied to

In virtue of the form of law, which constitutes the a priori structure of

2.4.4. Mind-independent pure law vs. Mind-dependent positive law. We can

2.5. Fifth Claim

2.6. Sixth Claim

(a person or a collective of persons) promulgates legal provisions which are

2.6.1. The legislator (a person or a collective of persons) promulgates legal

As Reinach already remarked, legal provisions do not have a personal mo-

moment in their content: I command you do to something.51 Thus, com-

2.7. Seventh Claim

2.7.2. Three cases of infelicity of the provisions fulfilment. It is possible that

2.7.4. Legislation and jurisprudence of the state. The interpretation of

domain (Herschaftsbereich) are two counterparts constituting the state as a

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