2. As to the conditions of its existence, this legal relation is involuntary.
A voluntary legal relation exists when legal norms make entrance into the relation conditional on actions of the obligated party, of which actions the purpose is to bring about the legal relation; for instance, entrance into the relation of tenancy is conditioned on agreeing to a lease. Per contra, an involuntary legal relation exists when legal norms do not make entrance into the relation conditional on any such actions of the obligated party, as, for instance, a patent is not conditioned on any action of those who are bound by it, and the sentence of a criminal is at least not conditioned on any action whereby he intended to bring it about.
If the State were a voluntary legal relation, a supreme authority could exist only for those inhabitants of a territory who had acknowledged it. But the supreme authority exists for all inhabitants of the territory, whether they have acknowledged it or not; the legal relation is therefore involuntary.
3. The substance of this legal relation is, that a supreme authority exists in a territory.
An authority exists in a territory by virtue of a legal relation when, according to the legal norms which found the relation, the will of some men—or even merely of a man—is regulative for the inhabitants of this territory. A supreme authority exists in a territory by virtue of a legal relation when according to those norms the will of some men is finally regulative for the inhabitants of the territory,—that is, is decisive when authorities disagree. What we here designate as a supreme authority, therefore, is not the men on whose will the legal norms in force in a territory are based, but rather their highest agents, whose will they would have finally regulative within the territory.
What men it is whose will is finally regulative for the inhabitants of a territory by virtue of a legal relation—for instance, members of a royal family according to a certain order of inheritance, or persons elected according to a certain election law—depends on the legal norms by which the legal relation is determined. On these legal norms, too, depends the question within what limits the will of these men is regulative. But this limited nature of the authority does not stand in the way of its being a supreme authority; the highest agent need not be an agent with unrestricted powers.
Here one might perhaps object that in federal States, in the German empire for instance, the individual States have not supreme authority. But in reality they have it. For, even if there are a multitude of subjects in reference to which the highest authority of the individual States of the German empire has to bow to the imperial authority, yet there are also subjects enough about which the highest authority of the individual States gives a final decision. As long as there are such subjects, a supreme authority exists in the individual States; if some day there should no longer be such, one could no longer speak of individual States.
4. As a legal relation, by virtue of which a supreme authority exists in a territory, the State is distinguished from all other objects, even from those that most resemble it.
By being a legal relation it is distinguished on the one hand from institutions such as would exist in a conceivable kingdom of God or of reason, on the basis of the moral law, and on the other hand from the dominion of a conqueror in the conquered country, which can never be anything but an arbitrary dominion.
