Juridical theory views the State in legal terms. It treats the State as an organ for creation of law and then for protection of legal rights of individuals and associations prescribed under the law. The State is treated as the repository of legal power, sovereignty by virtue of which it prescribes laws and ensures protection and enforceability of legal rights.
Within the juridical fold, three different approaches can be identified—analytical, historical and sociological. The analytical jurists view the State as ‘an institution for the creation, interpretation and enforcement of law and which acts through and by means of law.102 The State is the sole source of law and only law enacted by it would be enforced. The monist theory of sovereignty mainly identified with John Austin relates to this view of the state.
On the other hand, the historical jurists, though agree that the State is the sole source of law, disagree with the view that law necessarily is a command formally enacted by a law-making body, which has enforceability. They emphasize that customs and social practices evolve historically and get crystallized as laws of society. Customs have never been created by the state. MacIver, Maine and others argue on such a line and underline the role of customs.
Duguit and Krabbe presented another view of law. They felt that law may exist without the State and is not created by the state. In fact, for them law originates for society and the State is also a creation of law. This is because law is prior and anterior to state. Their view may be termed as sociological jurists view.
A second aspect of the theory relates to State as a juridical person/legal personality. The State is viewed as an artificial person or fictitious legal personality, with rights and duties like an individual. This aspect draws heavily on the Gierke-Maitland thesis on personality of groups. This approach became the basis for the pluralist approach, which encouraged legal personality to associations. However, Gierke attributed personality to the State so that by the same logic groups could also be easily attributed with personality.
The State is recognized as a legal entity in the court of law when it is a party to litigation. The enforceability of the legal rights requires that the State should be represented as a juridical body. In the Indian context, for example, the phrase ‘Union of India’ is a juridical personality.
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