Law and the Modern State
What is 'Law'?
General Understanding of Law
Definition: Law can be understood as an instrument through which social life is organized.
Human Phenomenon: Law arises wherever humans feel the need to regulate coexistence through common rules.
Latin Phrase: Ubi societas, ibi ius translates to "where there is society, there is law".
Subjective Meaning of Law
Concept: The subjective meaning of law revolves around rights.
Example: The right to vote is an individual's claim, illustrating the personal aspect of legal rights.
Objective Meaning of Law
Concept: The objective meaning of law pertains to legal systems and rules.
Example: The Spanish Constitution serves as a set of legal rules, representing a legal system.
Interdependence: The relationship between subjective rights and objective legal provisions is one of interdependence; for instance, "I have the right to vote because the Constitution (article 68.5) provides for it".
Field of Study of Law
Discipline Definition: Law as a field of study includes the examination of provisions dictated by the legislator, interpretations by judges, and doctrinal comments by legal scholars to classify and create a consistent legal framework.
Components:
Provisions: Signs dictated by the legislator.
Interpretations: Meanings provided by judges.
Doctrinal Comments: Attempts by legal scholars to classify provisions and interpretations.
Branches of Law
Private Law: Governs relationships between private parties.
Examples: Commercial law, Family law, Labor law.
Public Law: Focuses on the organization of public institutions and the relationships between public authorities and private actors.
Examples: Constitutional law, Administrative law, Tax law.
Objective Understanding of Law
Context: Individuals belong to multiple legal orders as part of their identity.
Example:
Sofia's Identity:
Spanish citizen > State
Daughter/Sister > Family
Catholic > Religion
Student > University
Volleyball player > Sport/Friends community.
Consequences of Legal Orders
Scenario: When Sofia decides to move in with her girlfriend, different legal orders trigger various societal responses (rewards, prohibitions, sanctions, punishments).
Maximum Sanction: The highest consequence could be expulsion from the legal order to which one belongs.
State's Unique Power
State Authority: The state is the sole legal order able to impose physical coercion (e.g., arrest, death penalty).
Historical Context: This extends to historical practices, such as the beheading of Saint John the Baptist, attributed to state authority.
Religious Sanctions
Historical Context: Different periods show that religions have historically condemned individuals (unfaithfuls, witches, heretics).
Example: The execution of Giordano Bruno by burning at the stake in Rome's Campo de' Fiori in 1600.
Intersection of Law and Religion
Contemporary Examples: In some countries (e.g., Iran, Saudi Arabia), state law and religious law overlap, leading to strict applications of Sharia law monitored by religious police.
Contextualizing the Meaning of Law
Historical and Geographical Coordinates
Interpretation: The meaning of law is tied to specific historical and geographical contexts, especially in the Western legal tradition where 'law' equates to 'state law'.
Contested Areas: Some regions' inclusion as constituents of the Western world is debated, highlighting ethnocentrism (the risk of viewing the West as central).
Example Concept: World Series Syndrome (Ran Hirschl) refers to the envelopment of western-centric viewpoints in legal frameworks.
Birth of the Modern State
Definition of the Modern State
Historical Significance: The modern state is a specific historical form of political organization that holds a monopoly on legitimate force within a determined territory.
Centralization of Power
Emergence: Following the feudal era, the modern state's emergence in the 17th century found its theoretical foundation in Thomas Hobbes' book Leviathan (1651).
Social Contract Theory: Hobbes describes a social contract where people entrust power to a sovereign authority in exchange for personal protection, thus avoiding self-destruction prevalent during the state of nature (homo homini lupus).
Constitutionalism
Development: Over time, citizens will pressure the sovereign state (Leviathan) to agree to limits on its power by providing personal rights and freedoms documented in constitutions.
Concept: Constitutionalism theorizes legal limits imposed on the state in relation to its relationship with citizens.
Rule of Law
Identifying Feature: The rule of law characterizes political systems where limits are adhered to, ensuring checks and balances to restrain political power.
Statistics: Reference to the Rule of Law Index 2024 which quantifies adherence to the rule of law globally.
Constitutive Elements of a State
People
Significance: The primary element for state existence is the population. The state determines citizenship conditions, including acquisition and loss.
Rules of Citizenship:
Ius sanguinis (Rule of Blood) pertains to citizenship through ancestry (common in Europe).
Ius soli (Rule of Land) grants citizenship based on birth location (common in America).
Territorial Aspects
Definition: Territory defines the environment where state jurisdiction is exercised, including its extension (territorial sea), depth (continental platform), and height (overhead airspace).
Sovereignty
Definition: Sovereignty is a critical tenth element representing a quality of power within a state.
Historical Perspective: During the Absolute State (referenced in Topic 2), sovereignty was exercised without limits by the monarch. In contrast, with the Liberal State, sovereignty begins to be restricted, reflecting a shift in power from a single individual to the collective state resources.
Theological Basis: Sovereignty's concept developed from 1600s theorists influenced by Catholic dogma, marking a theological idea.
Characteristics of Sovereignty
Internal Sovereignty: Refers to the state's authority not being subordinate to any other legal system; it legitimizes its own laws.
Example: The Decalogue of Commandments emphasizes that the state has no other gods or authorities above it.
External Sovereignty: The state operates independently from others without external interference in its governance.
Historical Milestone
Peace of Westphalia (1648): This treaty symbolizes the beginning of the modern state by marking the independent negotiations of state relationships, disregarding the governors' religious affiliations.
Crisis of the Modern State
Challenges Post-Second World War
Understanding Changes: The modern state and its key elements have faced increasing challenges after the end of the Second World War.
External Challenges: Include influences from international organizations (e.g., European Union) and global private actors (e.g., Walmart, eBay).
Internal Challenges
Multiculturalism: The challenge of integrating diverse cultures within state boundaries.
Organized Crime: Increased levels of organized crime within states, highlighted by a global index of organized crime levels in various countries, providing numerical data that ranks countries according to their levels of organized crime.
Example Rankings: Turkey (7.03), Russia (6.87), Ukraine (6.48), etc.
Legal Pluralism
Definition: Legal pluralism refers to the coexistence of multiple legal systems within a geographic space defined by state boundaries. This can include state law as well as religious laws, private law-making bodies, and international law.
Historical Context: Legal pluralism has often been marginalized and viewed skeptically within legal discourse, traditionally dominated by state-centered legal theories.
Quote on Legal Discourse**
William Twining's View: The historical dominance of legal conventions has favored monist, statist, and positivist conceptions of legal systems, often disregarding alternate legal frameworks.
Concept of Liquid Modernity
Reference: Ideas presented by Zygmunt Bauman (1925-2017) discussing the evolving nature of modern states and societal structures in the context of uncertainty and change.