Politics, Law, and the State: A Comprehensive Overview

Posted on Nov 2, 2024 in Philosophy and ethics

Politics, Law, and the State

Politics

Politics is the process through which groups and collectives make decisions. It is related to power conflicts that arise when making decisions in any environment (internal and external).

Legitimacy

Legitimacy is the recognized ability of a person or institution to generate resources or commitment to achieve a goal or purpose. It’s the psychological nature of ruling.

  • Source: The conditions that allowed for attaining a position of authority.
  • Exercise: Standards to be met to carry out the mandate.
  • Types: Appealing to tradition, charisma, or established standards.

Law

Law is a set of rules and institutions that regulate social interactions, promote collaboration, and are inspired by values such as freedom, justice, and security.

Relationship Problems between Politics and Morality

  • Political Realism: The end justifies the means (Machiavelli).
  • Radical Anarchism: All power and political pursuits are inherently bad (extreme liberalism).
  • Tragic Relationship: Politics and morality are not viable together, but cannot be separated. Good politics inevitably leads to moral compromise.
  • Dramatic Trend: Politics and morality cannot be separated, but we can infuse morality into politics (via institutional powers, participatory governance, and social movements).

Institution

An institution is any human creation designed to permanently satisfy a collective need. This includes both tangible assets and intangible elements.

Classification of Law

  • Objective Law: The set of rules and institutions established in legal codes and constitutions.
  • Subjective Law: The powers that the law recognizes individuals have to interact within the legal system.
  • Natural Law: Principles that exist before the creation of the state and that positive law must recognize.
  • Positive Law: The law contained within the established legal order.

Law as:

  • Method: Should be considered value-neutral.
  • Theory: Joint work, imperativism, supremacy of law, and deductive reasoning.
  • Ideology: Designing any valid law as fair.

Difference Between Public and Private Law

  1. According to its end and purpose.
  2. According to the powers or functions that create the rules.
  • In private law, neither party can unilaterally impose rules.
  • In public law, standards are imposed on everyone, but within limits.
  • According to the freedom they create for their recipients.

Constitutional Law

Constitutional law is the branch of law that organizes political power, public institutions, and the rights that individuals have in relation to public bodies.

Community

A community is an association of individuals with shared ties or links who wish to remain together over time.

Social Organizations (according to different schools of thought):

  • Historical-Anthropological School: Society is constantly evolving.
  • Naturalistic School: Humans are social creatures and naturally live in organized societies.
  • Contractarian School:
    • Hobbes: Humans are dangerous without organization, so we agree to surrender power to a central authority.
    • Locke: We make a pact to renounce some rights to a central authority, but retain natural rights.
    • Rousseau: Humans are inherently good but become corrupted by society. We agree to give up natural liberty in exchange for civil liberties.

The State

Status

A state is an organized political entity with a defined territory and population. It has a structure based on a set of legal rules aimed at the common good.

  • Jelinek: A socio-historical and legal-political phenomenon that serves the community.
  • Kelsen: An interdependent legal order based on a fundamental rule.
  • Burdeau: An abstract entity with the power to organize territory and political power, with temporary leaders.
  • Horiou: A human group in a territory with social and political order, using coercion to achieve the common good.

Forms of the State (Historical)

  • Ancient Kingdoms (Egyptian, Persian)
  • Greek Polis
  • Roman Civitas
  • Feudalism

Political Forms of the State

  1. Absolute State: Monarchy established with traditional legitimacy, often intertwined with religion and divine right.
  2. Liberal State: Emerged in the late 18th century with the revolutions for independence and the French Revolution. Enshrined the separation of powers and limited monarchy or republics.
  3. Democratic State: Appeared in the 20th century with universal suffrage and constitutional guarantees of economic and social rights. Primarily republics.

Population

Population refers to all persons living within the territory of a nation, who are granted certain rights and obligations.

People

People are a group of individuals who recognize themselves as having political rights (citizens).

Nationality

Nationality is the legal link between a person and a specific state.

Territory

Territory is the physical space where a group of people live, obtain resources, build shelter, develop their history, and bury their dead.

  • Soil and subsoil are part of the state’s territory, extending downwards conically.

Ocean Space (governed by the Law of the Sea Convention)

  • Territorial Sea: Area contiguous with the state, extending 12 nautical miles from land. The state has full sovereignty.
  • Exclusive Economic Zone (EEZ): Extends 200 nautical miles from land. The state has rights to exploit resources but not full sovereignty.
  • High Seas: Cannot be claimed by any state and is considered a common space.

Airspace

  • Since 1914, the principle of full sovereignty over airspace has governed air traffic regulation.
  • Outer Space: No state can claim sovereignty over outer space (since 1957).
  • Freedoms of the Air:
    • Fly nonstop over another state’s territory.
    • Make technical stops without commercial activity.
    • Carry passengers, cargo, and mail between two countries that are not the aircraft’s country of origin.

Power

  1. The aptitude, ability, energy, or competence to fulfill a purpose.
  2. The result of a relationship of command and obedience.
  3. George Burdeau: A social force in the service of an idea. A force born of the prevailing social will, intended to guide the group toward a social order and capable of imposing that order.
  • According to Weber: The possibility of obedience even against the will (uni-dimensional and bi-dimensional approaches).

Characteristics of Power (for the State)

  1. Public, supreme, and original.
  2. Temporary, has legitimate force, and is institutionalized.