Forms of State Territorial Organization and Decentralization
Forms of State: Territorial Sense
There are variations between sovereign power and its relation to territory. When discussing unspecified forms of state, we refer to the variations in state forms in the strict sense.
Absolute State
The concept of the absolute state, where all political power resides in a single institution (the crown), was once considered an inherent feature. This absolute state also resulted in absolute territorial control, with power centralized both territorially and institutionally, creating a unitary and focused form.
Deconcentration
Deconcentration involves delegating functions to other institutions under specific conditions:
- Delegated Functions: These functions are administrative or executive, focusing on enforcing laws and management.
- Recipient Institutions (Organs): These institutions are modest and characterized by:
- Lack of legal personality, meaning they are not considered legal persons with rights and obligations.
- No ownership of property; they utilize state assets for administrative purposes.
- No independent budget; their finances are integrated into the general state budget.
An example of deconcentration is the delegation of functions within the Treasury, allowing citizens to handle matters locally.
Decentralization
There are two main types of decentralization, ranging in scope:
Administrative Decentralization
This form goes beyond deconcentration, transferring executive functions to institutions with legal personality, independent budgets, and equity. These institutions can be:
- Territorial: Entities with a specific territorial scope, such as those within Local Government.
- Non-Territorial: Entities that can operate throughout the territory without specific geographical limitations, often referred to as institutional entities or public agencies.
Political Decentralization
This type transfers both executive and legislative functions, granting the ability to create legal rules and laws. Autonomous Communities are an example of politically decentralized entities.
Challenges of Political Decentralization:
Two key problems arise with political decentralization:
- Division of Powers: Determining the responsibilities of the state versus the decentralized entities.
- Financing: How to effectively finance the decentralized entities and their operations.
Types of Competence
Competence refers to the power to act upon a specific subject matter. In the context of a decentralized state, different types of competence exist:
Exclusive Competence
One entity holds complete legislative and executive power over a specific area. While the state might delegate tasks, it retains overall legislative control.
Shared Competence
Two entities share responsibility, which can manifest in two ways:
- One entity legislates, while the other executes. For example, the central government creates laws, and regional entities implement them.
- One entity establishes a general framework law, while the other develops and executes specific regulations.
Implied Powers
Powers not explicitly granted but understood to exist based on context and necessity. The U.S. Federal Bank serves as an example.
Double Competence (Concurrent Powers)
Both the state and decentralized entities possess authority over the same area. Education and cultural matters often fall under double competence.
Resolving Conflicts:
Disagreements between entities with overlapping competencies require a mediating body, such as the Supreme Court in the U.S. or specialized courts in other systems. These conflicts can be:
- Positive Conflict: Both entities claim competence over the same matter.
- Negative Conflict: Neither entity wants to assume responsibility.