The State: Its Nature, Types, and Relationship to Law and Rights
Sociability and Self-Interest vs. Sociability and Nature
Authors like Thomas Hobbes and Sigmund Freud maintain that the human being is not a social being by nature, but we live in society for pure self-interest. On the other hand, according to authors such as Aristotle and Erich Fromm, the human being is incomplete by nature and, therefore, he is in need of others.
The State: Its Nature and Functions
The State is a type of political organization characterized by a permanent and indisputable power in a specific territory. It has the following key features:
- Territorial Power: The power of the State extends to the whole territory that delimits its borders.
- Sovereignty: At the state level, there is no instance higher than the State itself. The State is the supreme sovereign within its territory, because it has supreme authority.
- Maintenance of Order: This is perhaps the main function of the State. The State has an obligation to protect its members from internal and external threats.
The State: Necessary or Not?
There are two opposing views on the necessity of the State:
- The State is not necessary: This is the position defended by anarchism. Anarchists, like Mikhail Bakunin, consider that the State is the instrument of the powerful ones to oppress the people so that only a few are in possession of the wealth of all.
- The State is necessary: This is the position adopted by the majority of thinkers who have reflected on the question of the State. From this perspective, the State is essential for two reasons:
- The State monopolizes force, since it is the only one that can make a legitimate use of it. Therefore, the State is necessary to limit and control outbreaks of violence.
- The State is also necessary because it is the only instance that promotes the common good. This view is supported by theories defended by Thomas Hobbes, John Locke, and Jean-Jacques Rousseau.
Types of States
Authoritarian State
The authoritarian State is characterized by the fact that its authority is unlimited and, therefore, it is not subjected to any kind of control. This monopoly of authority is reflected in the impossibility of citizens to intervene in state matters.
- Absolutist State: In these monarchies, the power of the sovereign is practically unlimited and it is not subjected to restrictions of any kind within the borders of his domain. Those who hold power are not chosen by the citizens, nor do the citizens have a way of legally opposing the orders of the ruler.
- Totalitarian State: There is an even more exhaustive control of all social and personal spheres. In these dictatorships, the State also controls those institutions that are not state-owned, such as civil society and even the private life of individuals.
State Based on the Rule of Law
In a state based on the rule of law, authority is subject to the”rule of law” Political power must be exercised within the limits of the legal system. The objective is to protect individual rights against abuses that may be committed by the State. Individuals are considered even superior to the state authority, since the State makes sense only as far as it contributes to the protection of the rights and freedoms of these individuals.
There are two key features of any State governed by the rule of law:
- The Constitution: This is the most important law that regulates and structures the running of a State.
- Separation of Powers: This is another mechanism that guarantees the existence of a fair State. Power itself should limit its own power. This involves the division of power into legislative, executive, and judicial branches.
Social State Based on the Rule of Law
This type of State is based on the conviction that the legal recognition of individual freedoms is indispensable, but insufficient in order to make many of the individual freedoms effective. It is also necessary to ensure a minimum social equality among citizens.
Law and Right
Law is the set of principles and norms to which human relations in society are subjected. Right is the faculty or ability of every human being to do what is allowed or to demand what is according to their dignity.
Positive Law and Natural Law
Focusing on law, we can introduce a new distinction between:
a) Positive law: It is the system of rules established by a particular Statewhich is applicable or in force at a particular time and place. This is known as the legislation of a country. b)Natural law. It is a set of principles and rules that are universal and immutable. the principle of legality. This principle consists in being in conformity with the law both in therelations between the State and citizens, and in the relations among citizens. This principlebelongs to the field of positive law and, therefore, does not take into account the possible injusticeof the laws. Something is legal, simply, if it matches the current laws, although these laws mayseem unfair to us. Principle of legitimacy is often contrasted with the principle of legality.What is legal may not be legitimate, since what is legitimate is what coincides with justice andmorality. In a previous section, we have already talked about the legitimacy of state power; now thelegitimate State will try to ensure that what is legal is also fair.