Introduction to the State and Rule of Law
Lesson 1: The State and the Rule of Law
I. The State
1. Historical Origin and Concept
The modern state emerged as a counterpoint to medieval feudalism, characterized by absolutism. Three key authors inspired its creation: Machiavelli (“The Prince”), Bodin (“The Six Books of the Republic”), and Hobbes (“Leviathan”). These thinkers placed the state above all other institutions and even the people themselves.
Despite the liberal revolutions, the state’s core structure as an organization of social domination with superior power remained. Revolutionaries primarily focused on altering the internal organization and distribution of power within the state.
2. Elements
a) Political Community: Often identified with the nation, but can encompass internal nationalities.
b) Territory: A defined area with borders where sovereign power is exercised.
c) Sovereign Power: The legitimate capacity to impose domination.
This classical notion of the state is further enriched by sociological concepts. Heller, for example, defines the state as a “unity of decision and action.” This highlights the importance of law, which ensures the state’s unity, cohesion, effectiveness, and orders the life of the community.
II. The Rule of Law
The rule of law is the model that guided the liberal revolutions. Its core principles include:
1. Popular Sovereignty
In response to absolutism, sovereignty is attributed to the people (e.g., Article 1.2 of the Spanish Constitution). This principle underpins democracy, encompassing freedom, equality, solidarity, and political pluralism.
2. The Division of Powers
A) Source
The concept originated in England. Locke distinguished between executive, legislative, and federative (foreign policy) powers. Montesquieu (“The Spirit of Laws”) further refined this into executive, legislative, and judicial branches, each controlled by a separate body. Both aimed to reject absolutism and empower the legislative branch (Parliament).
These ideas were enshrined in the American Constitution (1787) and the French Declaration of the Rights of Man and of the Citizen (1789).
B) The Constitutional Powers
a) Legislative Branch: Held by Parliament, representing the nation. It can be unicameral or bicameral (e.g., Congress and Senate). In federal states, the second chamber (e.g., Senate) often represents territorial interests.
b) Executive Branch: Held by the Government. Two main types exist: presidential (Head of Government and Head of State are the same, e.g., United States) and parliamentary (Head of Government is elected by Parliament, Head of State is separate and plays a role of arbitration and representation, e.g., Spain – Article 1.3 of the Spanish Constitution). In parliamentary systems, the Head of Government needs Parliament’s confidence. The Head of State’s actions must be countersigned by the Government.
c) Judiciary: Resolves conflicts according to the law and addresses transgressions of the law. Judges and courts are independent, immutable, and only accountable to the law.
C) Relations Between Constitutional Powers
The three powers are not entirely separate and interact significantly. Relationships can be classified as:
a) Political: The Prime Minister is elected by Parliament and needs its confidence. If confidence is lost, a vote of confidence can be called. The President can dissolve Parliament (e.g., Articles 113 and 115 of the Spanish Constitution).
b) Functional: The Government can propose legislation to Parliament, and Parliament can oversee the Government’s actions.
D) Evaluation of the Current Theory of the Division of Powers
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3. The Principle of Legality
Both citizens and public authorities are subject to the Constitution and the legal system (e.g., Article 9.1 of the Spanish Constitution). This is the essence of the rule of law. Governments cannot violate laws, and citizens can seek redress in courts if they do.
4. Recognition of Subjective Public Rights
The rule of law elevated citizens from subjects of absolutism and recognized fundamental rights that public authorities must respect. These rights are enforceable in courts, a cornerstone of the rule of law.
5. The Social and Democratic State of Law
The social and democratic state of law builds upon the rule of law but emphasizes social rights. Public authorities must actively promote the realization of these rights, implying a constitutional mandate for interventionist policies.
This model originated in post-WWII Germany (Fundamental Law of Bonn) out of concern for social well-being. It blurs the line between state and society, fostering greater citizen participation in public affairs.
In the Spanish Constitution, the guiding principles of social policy are outlined in Title I, Chapter III.
III. The Executive and Public Administration
1. Government and Administration
Executive power is vested in the Government, led by the President. They perform actions of a constitutional nature, subject to control by the Legislature or the Constitutional Court. The Government leads public action and controls the Public Administration (the state’s organizational apparatus). It directs the state in various domains (civil, domestic, foreign, military), leaving law and justice to the other branches.
2. Characteristics of Public Administration
A)
Public Administration is subordinate to the Government. It is characterized by a bureaucratic and civil service structure based on public law (the European model). It also exhibits continuity and permanence, as its activities require it, regardless of changes in the executive branch. Neutrality is another key feature: the Administration is non-ideological, acting objectively and in full compliance with the law.
B)
Administrative functions differ from the core functions of government (executive, legislative, judicial). The Administration implements regulations and resolves administrative appeals. It also supports the Legislative and Judicial branches in their organizational tasks (e.g., personnel management). Therefore, defining Public Administration solely based on its functions is inadequate; its subordination to the Government is a primary characteristic.
IV. The Structure of the State
The state is not a monolithic entity. It includes municipal organizations, representing a second level in the exercise of public functions. States can be unitary or federal.
Unitary states may incorporate decentralization, primarily extending to municipalities, which are administrative units. However, their bodies are composed of elected representatives, not just appointed officials.
Regions represent further decentralization, exercising state powers beyond local interests. They can be administrative (similar in structure and function to municipalities) or political. Political regions adhere to the principle of separation of powers (except judicial) and share characteristics with the state administration (continuity, permanence, etc.).
In federal states, federal states (or provinces) have their own division of powers, mirroring the Federal Government. Their administrations are subordinate to the Provincial Governments and share the characteristics described above.