he conception of
a second restriction which was conditioned by the entire historical
development. The mediaeval state found restrictions not only in the
strength of its members, but also in the sphere of the church. The
question as to how far the state's right extended in spiritual matters
could only be fully raised after the Reformation, because through the
Reformation those limits which had been fixed in the Middle Ages again
became disputable. The new defining of the religious sphere and the
withdrawal of the state from that sphere were also on the lines of
necessary historical development.

So the conception of the superiority of the individual over against the
state found its support in the entire historical condition of England in
the seventeenth century. The doctrines of a natural law attached
themselves to the old conceptions of right, which had never died, and
brought them out in new form.

The same is true of the theories that arose on the Continent. Since the
predominance of the historical school, one is accustomed to look upon
the doctrines of a natural law as impossible dreaming. But an important
fact is thereby overlooked, that no theory, no matter how abstract it
may seem, which wins influence upon its time can do so entirely outside
of the field of historical reality.

An insight into these historical facts is of the greatest importance for
a correct legal comprehension of the relation of the state and the
individual. There are here two possibilities, both of which can be
logically carried out. According to the one the entire sphere of right
of the individual is the product of state concession and permission.
According to the other the state not only engenders rights of the
individual, but it also leaves the individual that measure of liberty
which it does not itself require in the interest of the whole. This
liberty, however, it does not create but only recognizes.

The first conception is based upon the idea of the state's omnipotence
as it was most sharply defined in the absolutist doctrines of the
sixteenth and seventeenth centuries. Its extreme consequence has been
drawn by the poet in his question of law:

"Jahrelang schon bedien' ich mich meiner Nase zum Riechen;
Hab' ich denn wirklich an sie auch ein erweisliches Recht?"[112]

The second theory on the other hand is that of the Teutonic conception
of right corresponding to the historical facts of the gradual
development of the state's