Elements of the State and State Power
Territory
It is an essential element of the state. A territory of the land is organized by states, except Antarctica. The area is expressed as: objectives, constraints, essential element of state power.
As Object
Imperium: extends to the personas. Dominium: stretching through the territory, although some private properties. For the State extends over the whole country (dominium) either privately or publicly owned.
As Deadline
State power is exercised in its territory and can not go beyond its territory (except the embassies). The basement which is below the state, is also owned by the state, like airspace or territorial waters.
As an Essential Element
Lope Guerra says that what defines the state is that it is a territorial power is exercised impersonally through legislation. Each state is independent and there is an obligation to protect that state. With regard to its territorial integrity (to respect it and justified the army), i.e., can not enter a state without its consent.
Population
This is another essential element; there may be people without a state, but no states without population. It is a group of people with similar characteristics. The relationship between the two has varied throughout history:
- In an absolute state, the town was subject, had no rights or participation in its power.
- In the exercise of the liberal state, the town appears as a citizen. Now they can participate in the exercise of power.
Human Group
These are all people who are currently in the state to whom the right of that state applies. This group is never homogeneous. There are social strata in which sometimes have been differences: the feudal lord-peasant / free-slave. This distinction was preserved even after the French Revolution. Today they are all equal before the law, though we can distinguish between nationals and aliens (Aliens Act), but the rights of foreigners have greatly increased, but not yet equal.
Nation
There are two theories about the concept of nation throughout history:
- Germanic Theory (objective or static): a nation is a group of people with common characteristics (race, language, religion, etc.) which distinguishes them from another set of population.
- French Theory (subjective or dynamic): this is a group of people with a common historical past and has the political will to continue living together and becoming a state.
Nationalism
It has a progressive principle: the union of Italy, Germany, etc., but also repressive: genocide, fighting between ethnic groups, etc. From the 60s onwards, there are two contradictory movements:
- European countries trying to create supranational organizations and unions give up part of state sovereignty to these organizations.
- The decentralization policy of the State. The states take their responsibilities to their CCAA, emerging nationalist movements in Corsica, Catalonia, etc.
State Power
According to Hariou, the State Constitution has defining features:
Political Power
Potestas + autoritas. It is independent of economic and religious power.
Power of Overlap and Centralization
It is above the other branches and tends to centralize, but sometimes the state itself decentralized power. Example: CCAA.
Civil Power
Military power is subordinate to civil power. Throughout history, there have been attempts to limit military power because it is a very strong lobby in a country.
Temporal Power
Power is not religious. According to Max Weber, the state has the monopoly of legitimate physical performance. Various kinds of legitimacy:
- Traditional Legitimacy: tradition is obeyed by the monarch, and his heirs.
- Charismatic Legitimacy: it obeys the ruling because it is supposed to have special qualities: the hero, warrior, prophet, and the great demagogue.
- Democratic, Rational, or Legal Legitimacy: it is due to power from the people. It is legal because it is applied through legislation. It is rational because it is organized.
Today it adds legitimacy of effectiveness: due to power because it is effective because it achieves desired results in-law to the progress of society. Sovereignty resides in the State:
- An absolute monarchy: in King.
- Liberal state: in the nation (based on census suffrage).
- Today: in the people, all who are nationals of the country.
In practice, sovereignty is exercised by the representatives (government, parliament, etc.). According to Carl Smith, who has sovereign power is the one who has the power to make exceptions. Nowadays, it is said that sovereignty is in crisis:
Internationally
Because some of the attributes of sovereignty are transferred to supranational organizations like the EU. In addition, states stronger than others do not respect the agreement of independence and intervene without the consent of the other State.
Domestic Level
Remedio Sanchez states that there is no crisis of sovereignty. For when a State gives power to an organization, it does so freely, using its sovereignty. The U.S. invasion, for example, are only occasional violations of international law, and international law allows for these interventions on humanitarian grounds: the International Tribunal.
Phases of Constitutionalism as Loewestein, by Historical Period
- The British System: results in the political regime Parliamentary.
- American Constitutionalism: (presidential) copied by countries in Latin America.
- System of Assembly: (directorial regime, with the French Revolution), similar to Swiss.
- Cesarismo Directory or Napoleonic Plebiscite: apparently democratic. Consisting of 3: Napoleon, Sieyès, etc. When facing the government with parliament, the issue is put to a referendum.
- Limited Monarchy: 1814, is that the king gives a short right of the people.
- There is no longer pure constitutional monarchy: transition from limited monarchy and parliamentary rule.
- Soviet Constitutionalism: through the soviets or workers’ councils.