topic 2

Form of State (FoS)

  • Definition: The Form of State (FoS) explains the relationship between those holding governmental powers (governors/rulers) and those subjected to such power (governed/ruled).

  • Purpose: The concept of FoS answers the question: What is the prevailing goal of the State?

    • Example: The Liberal State aims first and foremost to guarantee individual autonomy, thereby abstaining from intervening into society (minimum State).

Form of Government (FoG)

  • Definition: The Form of Government (FoG) refers to the manner through which State functions are distributed among constitutional bodies, as well as the complex of power relationships among them.

  • Purpose: The concept of FoG answers the question: Who detains power?

    • Example: In the U.S., executive power is mainly shared between the President and Congress (checks and balances).

Taxonomies of State Forms

Diachronic Taxonomy

  • Feudal Society (476-1500)

  • Absolute State (1500-1700)

  • Liberal State (late 1700-1800)

  • Democratic Pluralistic State (1900-present)

  • Authoritarian State

Synchronic Taxonomy

  • Unitary State

  • Decentralized State

    • Federal

    • Regional

Feudal Society

Historical Context

  • The State or comparable forms of social organization existed since ancient times (e.g. Ancient Greece).

  • Modern understanding of the State develops in Europe after 1600, supplanting the Feudal society/patrimonial state system based on a private law agreement or pact between Lord and Vassals binding upon the contracting parties only (legal particularism).

Political Criticalities

  • Issue: Overlapping, conflict, and confusion among legal relationships resulted in legal uncertainty.

  • Effect: Dispersion of power as a propellant of civil and religious wars across Europe between 1500 and 1600, causing wars, looting, and misery.

Economic Criticalities

  • Issue: Legal particularism made commercial transactions more difficult and fragmented, creating a non-fluid market.

  • Need: To ensure social order by centralizing power.

Comparative Analysis

Feudal vs. Modern State

  • Feudal System

    • Dispersion of power

    • Personal bureaucracy/army

    • Private Law

    • Particularistic vocation

  • Modern State

    • Concentration of power

    • State bureaucracy/army

    • Public Law

    • Universalistic vocation

Absolute State

Characteristics

  • Difference from Feudal System: The Absolute State features a stronger concentration of power within the hands of the monarch, who is the head of State and interpreter of an universalistic vocation.

  • Theoretical Model: The contemporary modern State; sovereignty does not belong to the people but only to the monarch ("I am the State").

Legal Status

  • Definition: Absolutus means no legal limits; the sovereign is not bound by state laws except for some customary principles (e.g., rules of succession).

  • Raison d'État: The monarch can derogate formal legal rules when invoking national interests, prioritizing political exigencies.

Power Structure

  • Legislative: The King himself is the primary source of law.

  • Executive: The King may have consultative organs like the Council of State.

  • Judiciary: The King indirectly appoints judges, supplanting local jurisdictions from the feudal system.

Absence of Constitution

  • The Absolute State does not possess a constitution, as this would imply a limitation of its power.

Modern State Emergence

  • The state begins to take a modern form with the establishment of a professional army, public administration, and tax collection for infrastructure development.

Liberal State

Historical Context

  • Established towards the end of the 18th century, influenced by revolutions like the French Revolution (1789) and the American War of Independence (1776).

  • Resulted from Enlightenment ideas and the aftermath of devastating religious wars in Europe.

Core Principles

  • Main goal: To guarantee individual rights and freedoms against royal claims, limiting public power.

    • Right of property is a crucial aspect.

Features

  1. Theory of Liberism

    • State abstention from intervention in the economic life of the country, focusing mainly on defense, security, and property, typifying the "Minimum State".

  2. Rule of Law

    • Establishment of the law above the State/Ruler (Rechtsstaat).

  3. Separation of Religion from Politics

    • Progressive secularization aligning with Enlightenment ideas.

  4. Principle of Legality

    • Any limitation of individual freedom must be grounded in prior legal authorization ("strings" to Leviathan).

  5. Separation of Powers

    • Concept by Montesquieu in "De l'esprit des lois" (1748).

  6. End of Legal Particularism

    • Through codification in civil codes, laws become general, abstract, and certain, offering predictable legal outcomes.

Liberal Constitutions

  • Characteristics of liberal constitutions:

    • Short and granted as a concession from the sovereign (except in the U.S.).

    • Flexible, though rigid in the U.S. due to Marbury vs. Madison (1803).

Problematic Features

  1. Selective Representation

    • Only property owners and tax-payers can vote.

  2. Limited Electorate

    • Very small proportion of the overall population eligible to vote (e.g., 5%).

  3. Rights Abuse

    • No limits on land use or extraction of natural resources, particularly during the Industrial Revolution.

Democratic Pluralistic State

Evolution

  • The crisis of the liberal state emerged at the end of the 19th century leading to transformative changes towards pluralistic democracy.

  • Influenced by the Industrial Revolution, which led to the growth of the working class, trade unions, and political parties advocating for more rights and expanded suffrage.

Class Struggle

  • Involvement of the proletariat versus the bourgeoisie, leading to new social dynamics.

Main Features

  1. New Institutions

    • Transformation in representative structures allowing for diverse interests rather than a homogeneous single-class perspective (principle of majority).

  2. New Constitutions

    • Emphasis on collective guarantees for political, social, economic, and religious diversity; active role of State in safeguarding rights and liberties.

  3. Constitutional Rigidity

    • Need for longer-lasting constitutions to prevent tyranny of the majority.

  4. New Freedoms

    • Transition from negative freedoms under the Liberal State to positive freedoms promoting social rights (e.g., right to health care and education).

  5. Social State

    • Evolved to promote liberty, justice, equality, and political pluralism as core values (example: Spanish Constitution of 1978).

  6. Economic Role

    • Interventionist approach to remediate wealth inequalities, marked by a mixed economy where public and private initiatives collaborate to fulfill public needs.

Authoritarian/Totalitarian States

  • Contradiction: Reaction against the minimalism of the Liberal State creates a more profound state involvement in individual lives and exploitation.

  • Historical Context: Rise of figures like Mussolini and Hitler, characterized by oppressive ideologies and violence.

  • The Socialist State: Opposed to liberal democracy, going through revolution until communism, aiming for equality and freedom; however, paradoxically leading to expansive state control rather than its dismantling.

Crisis of the Democratic Pluralistic State

Economic Challenges

  • The 2008 financial crisis led to resource shortages for welfare services, provoking discontent and thriving populist sentiments.

Immigration and Intolerance

  • Increasing discontent due to resource competition, leading to xenophobia and support for political parties promoting intolerance.

Administrative Burdens

  • Growth of state bureaucracy and financial demands, leading to inefficiencies in service provision (e.g., health care in Europe).

Social Protests

Notable Trends

  • From 1900 to 2006, success rates of peaceful protests were high (53%), while from 2010 onwards, success rates dropped to 34%.

  • The shift to transnational protests organized online introduces advantages and challenges, including fragmentation and lack of effective organization.

  • Need for civil society participation emerges alongside the crisis of the State and international organizations.

Synchronic Taxonomy

State Structures

  • Distinction of legal orders based on the distribution of power between central state and territorial sub-entities

Unitary State

  • Centralized sovereignty, examples include France, Japan, Norway, Sweden.

Decentralized State

  • Shared sovereignty (e.g., USA, India, Brazil, Mexico, Germany).

Federal States

  • Originates from a contract (foedus = alliance) wherein independent states confer limited powers to a central government.

  • Establishment of a new common legal system for specific issues through a constitution, representing a bottom-up formation, except in some cases like Belgium.