sum up, the concept of legality in the sciences of public and constitutional law is based upon a metaphysical substratum - natural law (and its corollaries for the scientific character of legal theories and ideas based upon jurisprudence). The intrinsic justification of the powers that be, does not constitute an isolated state of affairs for the sciences of public and constitutional law, for instance, the same holds for the analysis of private law jurisprudence.280 Oddly enough, it is the theoretical substratum of private law, namely the doctrines of obligations and contracts, that has influenced the idea of legitimacy in public law to a great extent - for instance, the idea of a social contract as a legitimizing factor for the exercise of state power. This influence from private law is especially evident when it comes to the idea that the legal relations of superiority and submission, as well as the division of powers between sovereign and subject, ultimately gains its binding power from a contract between the involved parties (which, however, according to public law is an invalid idea). According to this idea of a social contract, the original powers and rights of the subjects to rule over themselves have been transferred to the sovereign by means of a contract of law, and in exchange for the power to rule over the subjects, the sovereign has taken it upon himself to protect what now is considered to be his subjects.281 If this idea is compared with the principles of public law, then its shows itself to be manifestly false, as public law itself holds that its own authority is based upon the actual power of the state to submit its citizens to its power rather than the existence of a fictive social contract, whereby the actual existence of a contract between sovereign and subject becomes a non issue, as such a contract would lack legal relevance as a tool of explanation as well as lack a factual basis.282 p a r t v i , c h a p t e r 6 466 280 Ibid., pp. 26-29. 281 Cf. ibid., pp. 244-245.Which deals especially with the French doctrines of public and constitutional law. 282 See, e.g., ibid., pp. 244-251.
RkJQdWJsaXNoZXIy MjYyNDk=