Now considered a scandal, as it was before the introduction of the _Rechtsstaat_ , is a prosecution which does not meet the requirements of procedure. From the moment such a case begins, it is a legal nullity, and can have no validity or effect ( _nullum juris effectum_ ). "The only thing which the judges can do in such a case, is to decide on the procedure which is properly due to the applicant, and to grant him that, in order to avoid what is improper or illegal in the conduct of the affair and in the results obtained by that procedure. Otherwise, such a thing is outside of the law." The idea here is that there is nothing the public prosecutor can do, as a private person ( _privatus_ ), which can effect a legal change in the material situation. There is no public power over the private, and _there can be no authority (potestas)_ over that which has no effects upon others, and no legal form, for that which is not a fact. The law is defined by what it is able to do (in other words, to have effects or consequences). A _fact_ can not be punished unless its "effects" can be made _legal_ by the sanction of the law. All juridical sanction must be based upon a fact, i.e., a _material reality_ or _realitas rei ad actionem (adverbi facti)_. In short, a legal process can not exist without a legal fact, and _no_ legal fact can be produced without the sanction of the law. The law can only exist as a valid command within a juridical community. A juridical community must be constituted by a _nexus rei ad hominem_ ( _nexus ad factum_ ). There are several aspects to the legal fact. One of them, and probably the most important one, is its juridical consequences. To that, we shall return. But the second aspect of the legal fact is its non-moral or non-legal consequences, i.e., the legal consequences it has in a worldly-historical context. Here, for instance, are those cases wherein the legal facts have no social consequences. A contract which a man makes with a devil, can have no legal consequences. Or, if a man is drunk at the time he signs his name to a document, what can he expect of his signature. So, no matter how much a man believes in the goodness of the _Rechtsstaat_ , his act may still be considered a legal fact, which will not only have no legal consequences, but no _social_ consequences as well. A _factum_ of that kind is in no way related to social consequences, and therefore does not bind anyone in any way. ### II: THE LAW AND THE RELATION TO SOCIAL CONSEQUENCES Since the law does not exist except within a legal community, every act of a person (i.e., every deed and all the consequences it may have), constitutes a public function, i.e., it is a _Gewalt_ of the State. All acts of a _subject_ (of the _Rechtsstaat_ ) are _public_ acts, because they are _acts_ and not _deeds_. The idea that the law is to be understood as synonymous with "publicity" is a very common one, and in fact, it can be understood in two ways. In one, the _Gewalt_ of the public, the _action_ or _function_ of a State, is considered synonymous with the public law. In another way, and even more often, "public" is only understood in a negative sense, to mean something private or something exclusive to the subject. We shall discuss these two aspects more fully below. But first, let us consider the _first_ way of thinking, according to which public law is the very same thing as publicity. The idea of public is one which implies publicity; and publicity is nothing else than _communication_. Every time I communicate to a person, a state of affairs, I am doing something which implies a public _Gewalt_ , and which is the _Gewalt_ of the State. I exercise a public function when I communicate or make known to someone something which is not strictly mine. But such a communication or publication must be made _public_ , otherwise it will be immaterial ( _unwichtiges_ ). Only then can it have legal effects. These effects are not, however, juridical effects. They have in fact only social consequences. This relationship between _communication_ and publicity, and hence the nature of publicity itself, is what we have called publicity, and we can even see a parallel to it in religious concepts. The State is, like the Church, a community of believers, and hence must have a _public_ nature ( _Gewalt_ ). By the same token, every communication and every piece of information is made public by its very nature ( _naturel_ ), because it is necessary for the communication itself that it be known by someone. In a certain sense, we can consider such communication as the _communication_ of the thing in question; in the best case, it is not so with a communication of which I am the sole _communicator_. If, then, a thing exists (a _res)_ , it can only exist by being _communicated_ , i.e., by being "publicly" known ( _communis_ ). But for that to be possible, the thing itself must have been _produced_ (and made into a fact), so that it is an item of some kind of production, and the process by which it comes into being is the process of production itself, and the act of communication is a _public act_ , i.e., is done within the sphere of action of the State. When the thing was brought into being in private property, then it is produced by an _author_ (a person _proprium_ ), and the communication to a specific person of the thing in question is an act of _sufficiency_ , i.e., a communication with a _personal_ communicator ( _communicator proprius_ ). And in the absence of a specific personal communicator, we must still resort to a _public_ one (the agent of a public authority), even if such authority is only a _representative_ one ( _verlagend_ ), to bring about the communication of the thing in question. And since the law is the foundation of public rights and of the rights of private persons, and therefore all rights are the public property of that right, when there is a communication or publication of a thing ( _communicatio personarum_ ), the _legal fact_ arises, and this legal fact is nothing else than the _legal personality_ of the person or thing, which has legal and social rights in its own name and in its own name only. A right ( _ius_ ), on the other hand, always implies a _personality_ and a _legal personality_ ( _res subjectiva_ , or _res personalis_ ). If one tries to think of it in any other terms, one must make use of the legal or juridical category. A right is a legal thing, which is only an aspect of the law, not a thing or a subject. The right in itself, _in se_ , can never have effects or consequences, and cannot therefore be _material_ ; it can never come into conflict with anything, nor can it be anything, for it has no "object." A right is therefore nothing but an abstract idea or a moral category. In this sense, it is a _non-factum_ , it is a _thing_ which does not exist. All right-facts ( _Rechtsfakt_ ) have always been _public_ in the sense that a human person can only communicate or make known to someone else a right-fact by declaring it to the public or by making it public, that is, _publicly_ known. There can be no secret rights, for a secret would be a thing (and a legal fact) which does not exist, i.e., which is not known, or which cannot be made known. And every personal _Gewalt_ is of the nature of the public, as can be seen from its very definition as an act of _sufficiency_. There are some things, however, which, as facts, cannot be known by other than legal means. If a person commits suicide, it cannot be publicly known (by declaring it, or making it known to others) because it is illegal (it is a _Sache_ which belongs to the police or judicial administration, and has no legal effects for any other body or authority). The law can only know, that is, _make known_ , public facts which are _legal facts_ , or which constitute public duties or public rights. #### § 6 _What Is the Law?_ The function of the law is to "establish a community of legal rights and duties" ( _Nichlische Rechtswissenschaft_ , II, p. 19). It must therefore establish the _relationships_ of men with each other, and between them and the legal rights and duties of the juridical community which was mentioned above (p. 2, 2). The _Rechtsstaat_ , as Kant calls it, has therefore to accomplish the following: 1. to prevent the intrusion