Understanding State Structures: Authoritarianism, Rule of Law, and Legal Theories
Authoritarian State: Unlimited Power & Control
An authoritarian state is characterized by unlimited authority, not subject to any form of control. This type of state does not recognize any legitimate body that can criticize, oppose, or control it. Fundamentally, this monopoly of authority is reflected in the inability of citizens to intervene in state matters.
State Based on the Rule of Law (Estado de Derecho)
This is a type of state where authority is subject to the rule of law. Political power, therefore, cannot be exercised arbitrarily; it must operate within the limits of the legal system. Individuals holding state positions and directly involved in the State cannot act as they wish, but must make their decisions within the confines of the law. The primary objective is to protect individual rights against potential abuses by the State. Individuals are considered even superior to state authority, as the State’s purpose makes sense only insofar as it contributes to the protection of individuals’ rights and freedoms.
Social State Based on the Rule of Law: Equality & Rights
This type of state is founded on the conviction that while the legal recognition of individual freedoms is indispensable, it is often insufficient. For the State to be truly fair to its citizens, it must not only adhere to the law but also actively correct the deficiencies and inequalities generated by the system itself. To make many individual freedoms effective, it is also necessary to ensure a minimum level of social equality among citizens. It is not enough that we are all equal before the law, because some fundamental freedoms (such as expression, profession, and association) cannot be fully realized without the existence of certain material conditions.
Legal Iusnaturalism: Natural Rights & State Role
Legal iusnaturalism is a conception of law and justice which defends the existence of natural rights of the individual that are universal and inalienable. Therefore, for iusnaturalist thinkers, the main function of the State is to protect and ensure that individuals can enjoy these natural rights. From that perspective, the positive recognition of these fundamental natural rights in the laws is interpreted as a formal recognition by the State of a series of previous ethical principles, which are inalienable and thus can be protected more easily.
Legal Positivism: Law as Explicitly Established
Legal positivism is a conception of law and justice where there is only a legal norm, a law, when it has been established positively—that is, when it has been explicitly included in some legal code. Therefore, any belief in the existence of some valid law prior to positive law is interpreted by legal positivists as the result of an unacceptable metaphysical position. In short, for legal positivism, the promulgation or positive recognition of human rights is not a mere declaration, since they do not exist previously, but a constitution of their existence. It is not a question of ratifying the postulates of natural rights, but of “giving them life” within the framework provided by a specific legal order.
Legal Realism: Beyond Formal Recognition
Legal realism is a conception of law and justice opposed to both legal iusnaturalism and legal positivism. From this perspective, the positivization process does not mean the declaration of pre-existing rights (iusnaturalism), nor the constitution of new rights (positivism), but is a further requirement to take into account for the effective and real enjoyment of certain moral and political demands for freedom and justice. The formal recognition of certain fundamental rights is not the end of the process, but a further condition for the subsequent development of real conditions in order to protect these rights.