concepts of state

CONCEPTS OF STATEOrigin & Elements

On the Origin of States

Theories on the Origin of States Divine Right Theory Social Contract/Compact Theory Necessity or Force Theory Paternalistic Theory Natural Theory Instinctive Theory Economic Theory

Divine Right Theory Let every person be subject

to the governing authorities. For there is no authority except from God, and those that exist have been instituted by God. Therefore he who resists the authorities resists what God has appointed, and those who resist will incur judgment.

(Roman 13:1-6, Holy Bible)

State was created by God. The authority to govern the people was

ordained by God upon rulers who were regarded as of divine descent.

A ruler’s divine appointment legitimated the ruler’s rule. The ruler’s exercise of power cannot be questioned for to challenge the ruler was to challenge God’s authority.

The ruler was subject to judgment only by God, not by his subjects or by any agency.

Social Contract Theory Early states must have been formed by deliberate

& voluntary compact among the people to form a society & organize government for their common good.

The ruling authority was established because of political compact where the people would render obedience to the government taken into account an upright ruler. The people had the right to desist from rendering

obedience when the government refrains from governing the society justly. The people has the right to resist and the right to revolt

when the government oppresses them.

Variations of the Social Contract Theory Thomas Hobbes

Viewed man in a “state of nature” as despicable, nasty and brutish, likened to jungle life where the stronger animals prey on the weaker ones.

Hence, man’s desire for self-preservation, order & peace could be attained only if they surrendered all their natural rights & submitted their will to an absolute sovereign monarch.

John Locke Men are rational beings & could make use

of natural law for their own good. Men needed the state to maintain peace &

order, provide them with essential services, & settle their quarrels and conflicts. As a result, men voluntarily consented, they

created the state for the purpose of promoting & preserving their natural rights to life liberty & property.

Force Theory Might makes right. Only force rules. Force is the first

law. – A. Hitler The state came into existence out of

conquest, force or coercion. Before the state existed, there were

always men strong enough to assert their leadership and power through force, conquest or violence. They subjected the people & compelled

them to obey their laws.

On the Elements of State

State vs. Nation

It is a political concept.

Not subject to external control.

A single state may consist of one or more nations or peoples.

It is an ethnic concept.

May or may not be independent of external control.

A single nation may be made up of several states.

State Nation

State: Defined

Essential Elements of a State

State

People

Inhabitants of the State, the number of which is capable for self-sufficiency and self-defense and of both sexes.

Territory It is the fixed portion of the

surface of the earth inhabited by the people of the State.

Terrestrial Domain

Maritime Domain

Fluvial Domain

Aerial Domain

Government The agency or instrumentality through

which the will of the State is formulated, expressed and realized. Functions

Constituent – it constitutes the very bonds of society and are therefore compulsory.

Ministrant – those undertaken to advance the general interests of society.

In this jurisdiction, the traditional classification of governmental functions is not relevant. All functions which were traditionally

regarded as merely ministrant & optional have been made compulsory by the Constitution.

Forms of Government

De Jure & De Facto Governments De jure – has a rightful title but no power or control,

either because the same has been withdrawn from it or because it has not yet actually entered into the exercise thereof

De facto – actually exercises power or control but without the legal title.1. De facto proper – government that gets possession &

control of, or usurps, by force or by the voice of the majority, the rightful legal government and maintains itself against the will of the latter;

2. Government of paramount force – established & maintained by military forces who invade & occupy a territory of the enemy in the course of war; and

3. Independent government – established by the inhabitants of the country who rise against the parent state.

Doctrine of Parens Patriae

The government as guardian of the rights of people may initiate legal actions for and in behalf of particular individual.

(Gov’t. of Philippine Islands vs. El Monte de Piedad, L-9959, December 13, 1916)

Sovereignty It is the supreme & uncontrollable

power inherent in a State by which that State is governed.

Characteristics of Sovereignty

Sovereignty

Permanent

Exclusive

ComprehensiveAbsolut

e

Indivisible

Inalienable

Imprescriptible

Act of State An act done by the sovereign power of a

country, or by its delegate, within the limits of the power vested in him. An act of State done by the political

departments of the government and not subject to judicial review.

It cannot be questioned or made the subject of legal proceedings in a court of law.

Royal Prerogative of Dishonesty Article XVI, Sec. 3 – The State may not be

sued without its consent. Basis:

Indiscriminate suits against the State will result in the impairment of its dignity.

“There can be no legal right against the authority which makes the law on which the right depends.” – J. Holmes

The demands & inconveniences of litigation will divert the time & resources of the State from the more pressing matters demanding its attention, to the prejudice of the public welfare.

Determining Test: If, assuming the decision is

rendered against the public officer impleaded, enforcement thereof will require an affirmative act from the State, then the suit is against the State.

If, however, the officer may by himself alone can comply with the decision of the court without involving the State, then it will not be considered as a claim against the State.

Foreign states are also immune from suits filed in local courts. Reason: Principle of the sovereign

equality of States – One state cannot assert jurisdiction over another for to do so would unduly vex the peace of nations.

Waiver of State Immunity The State may be sued, if it gives its

consent. Forms of Consent:

Express•Manifested either through a general or a special law.•Act No. 3083, CA No. 327 as amended by PD No, 1445

Implied•It is given when the State itself commences litigation or when it enters into a contract.

However: the State may consent to it being sued, but the State does not thereby also consent to the execution of the judgment against it. Waiver of immunity by the State does

not mean concession of its liability. Execution of State liability will require

another waiver, lacking which the decision cannot be enforced against the State.

CONCEPT OF THE CONSTITUTION

Definition

[T]hat body of rules & maxims in accordance with which the powers of sovereignty are regularly exercised. (Cooley, as cited by I. Cruz, Consti. Law)

Purpose

1. To prescribe the permanent framework of a system of government;

2. To assign to the several departments their respective powers & duties, &

3. To establish certain first fixed principles on which government is founded.

Supremacy of the Constitution

The Constitution is SUPREME. No act shall be valid, however

noble its intentions, if it conflicts with the Constitution. [Supremacy of the Constitution must prevail.]

Classification

Written

Unwritten

Evolved

EnactedRigidFlexible

Written

RigidConventional

Essential Qualities of the Written Constitution

Constitution

Broad Brief Definite

Essential Parts of the Written Constitution

Constitution

Constitution of Liberty

Constitution of GovernmentConstitution of

Sovereignty

Interpreting the Constitution1. Interpreted in such a way as to give

effect to the intendment of the framers.2. In case of doubt, the constitution should

be considered self-executing rather than non-self-executing; mandatory rather than directory; & prospective rather than retrospective.

PREAMBLE

Preambulare – Latin word, which means “to walk before” [pre:before; ambulare:to walk]

It is not an essential part of the Constitution.

Object & value of the Preamble:1. Sets down the origin and purpose

of the Charter.2. It may serve as an aid in its

interpretation.

FUNDAMENTAL PRINCIPLES & STATE

POLICIES

Article II, 1987 Philippine Constitution

This article is intended to lay down the rules underlying our system of government & as such, it must be adhered to in the conduct of public affairs & the resolution of public issues.

The purpose is to emphasize and articulate unequivocally the objectives & limitations of governmental action in pursuit of the general goals announced in the Preamble.