The State as a class political organization performs certain functions that are within the scope of a fundamental goal: that of perpetuating the interests of the ruling class and, in turn, achieving political stability through an active consensus of the governed regarding its management. These functions suppose a continuous, systematized and ordered activity for the fulfillment of that end.
A first distinction would be necessary when referring to the functions of the states themselves, which will be a common denominator in any economic-social formation and type of State, on the other hand they come to life from the various structural forms they adopt from organs that They perform such functions, which will be conditioned by historical, social, ethnic, and even geographic factors, and are largely the result of the differentiation of those functions.
The examination of the fundamental conjectures about the functions of the State is a controversial subject, since to a large extent the positions assumed on the subject have been subject to the ideological conceptions of each author and his considerations about the essence of the State itself, which is embodied in a wide range of doctrinal criteria. Such an idea is corroborated by dissimilar authors, including Eberhard SCHMIDT-ASSMANN, who after analyzing the system of operation of the state apparatus, sentenced that "one cannot even speak of the existence of a finished doctrine on the functions of the State". However, as Fernando GARRIDO FALLA points out, "it is generally accepted that the so-called rule of law is based on the political principle of the division of powers"
The tripartition of powers
The notion of the State integrated from the organic point of view by the legislative, executive and judicial powers, which derive in the exercise of the functions of legislating, executing and judging, is legislatively configured for the first time in the American Constitution of 1787 and later by the constituent Assembly of revolutionary France in the declaration of the rights of man and the citizen of 1789, where the legislative power was spun off as a result of the recognition of the principle of national sovereignty, the executive is conceived subject to compliance with the Law, as postulated by John LOCKE in the 15th century and later conceptually developed by Charles Louis de SECONDAT, Lord of la Brède and Baron de MONTESQUIEU in the 18th century, in his work "From the spirit of the laws".
Until the climax of the revolutionary boom that meant the French Revolution and the rising waves that shake the European continent after the Napoleonic wars bringing with it radical and profound transformations in the way of exercising political power, the monarchies had as a general rule the principle of concentration of powers, that is, the properly executive and legislative activities, and even a large part of the judicial ones, was exercised by the King individually. The exception was England, where the legislative power rested in the Parliament, and in the Monarch the regulation or ordinance, by virtue of which it could dictate legal norms for the execution of the laws, but with the limitation of not violating their content:MONTESQUIEU in formulating his postulates regarding the separation of powers took into account English political practice, where the medieval courts in secular struggle against the Crown, successively wrested from it a set of prerogatives and powers that make them the new parliaments.
This design is idealized as a device capable of avoiding the abuse of power that led to the fact that all authority was concentrated in one person. Originally this theory was conceived in the sense that the laws should be born from a deliberative and representative body of the people (Parliament, Congress, Assembly, Court, etc.); the administrative function would be held by an executive body (King, President of the Republic, Directory, Council of Ministers,), and the jurisdictional function would be exercised by the courts.
The segmentation of power and the recognition of bodies other than the legislative, executive and judicial functions, was largely appreciated as an ideal model opposed to the conception of exercise absolutely by the monarch, whose legitimacy derived from an alleged connection with divinity, which was transmitted from generation to generation, since at some point in their family tree they had had a connection with God, which justified the submission of the population in their condition of subjects and the absence of limits for the will of this.
Juan Carlos CASSAGNE sentenced this functional design “The theory of the division of power starts from recognizing that the people who possess power normally tend to their abuse, which is why it considers essential the institution in the State of a system of checks and balances, of so that the powers can control each other and that the resulting balance allows the intermediate bodies of society to play and favors the freedom of the citizens ”.
An important note to take into account is that, as Víctor GARCÍA TOMA pointed out, “the name« classical theory of the division of powers »does not respond to its content, since it is not properly such, but rather consists of the distribution of functions among the different hierarchical organs of the State. For this reason, using its expression in its literal sense, there is not and never can be a division of powers.
However, this so-called thesis was inspired by the political organization of the emerging modern states, whose constitutions also embodied the notions of concepts such as equality, national sovereignty, the rule of law, constitutional supremacy and the adjustment of state action to the norm. of Law.
Classic constitutionalism states that the legitimacy of power comes from the "general will", whose exclusive form of expression is through the "General Law", that is, the latter represented a logical consequence of the former and therefore the Law is responsible for determining and justifying expressly and previously all the singular acts of power, the latter being a derivation of the will of the people, ignoring the role of the political and economic interests of the classes that effectively hold it.
In this regard, with a critical view of the system of political and administrative bodies in charge of tracing the guidelines of conduct to be followed by society to reconcile the dissimilar socio-political interests and achieve state hegemony, Fernando GARRIDO FALLA synthesized; “The contraption of representative democracy consecrates the fiction that it is the sovereign people who legislate; on the other hand, by forcing the executive to comply with the Law, the requirements that national sovereignty contains are completed. ”
This same author analyzed the legal consequences of the political principle of the division of powers and refers as the first of them to what he describes as "indisputable residency with which the executive branch presents itself", because it is subject to the legislative power in the exercise of its functions, establishing as a constitutional dogma the submission of the Administration to the Law, which will establish the limits of its action, the legislative proceeding as an organ of political and administrative oversight of the executive and as a second consequence “that the effective obedience that the Administration has lent to the Law is verifiable before the courts, as long as as a consequence of the administrative action a right or at least a legitimate interest of the individual has been damaged ",reason why the administrative action can be corrected by the courts, when it does not adjust to the mandate of the Law.
The criteria in relation to the functions of the State are different, but the imprint of the design conceived by MONTESQUIEU to a greater or lesser degree is noticeable, although at times and authors the perception of the executive function is more comprehensive and extends to the administrative. As for the relationship between the state apparatus and the Law, León DUGUIT maintained that "the State is founded on force, but this force is not legitimate except when it is exercised according to law, the object of the State being essentially an end of law, and not being able manifest their activity but in accordance with law and in the field of "(sic). Thus, it considered the legal functions of the State, through which it legitimized its actions, the legislative, the jurisdictional and the administrative;noting that in these three ways the rulers assert their will by intervening in the social, economic and intellectual life of the nation.
In the same line of thought, Guido ZANOBINI stated that “the State provides the achievement of its ends through a series of activities that constitute its functions, the function through which the State establishes these different rules of conduct is called legislation; that with which it ensures the observance of the norms, constitutes the jurisdiction, ”the author himself defines a third function; when appreciating the Public Administration in an objective sense, as "the practical activity that the State develops to immediately attend to the public interests that it takes over for the fulfillment of its purposes," broadly delimiting this function, which stands as center of its activity and encompasses its organization, operation and articulation,in the self-protection of the existing order and the solution of dissimilar problems and needs of the community, before the evident reality that for the development of its objectives, the State could not limit itself to the mere execution of the laws resulting from the legislative work of the legislature.
Criteria from Marxism about the functions of the State
Julio FERNÁNDEZ BULTÉ explains about the doctrinal criteria on the functional division of the State: “the most usual bourgeois theory maintains that the State performs three main types of functions: the legislative, the executive, and the judicial. This division is perfectly reconciled with the MONTESQUIEU doctrine of the tripartition of powers and this contributes to its dissemination and general theoretical acceptance ”, which, seen in this way, is no more than a reductionist criterion regarding the wide range of functions assumed by the States, regardless of the fact that they constitute these legal mechanisms to carry out the political, economic, social, administrative and control functions that are imposed on it.
Other jurists also affiliated with Marxist conceptions start from the class character of the State as an apparatus of power, assuming a more comprehensive vision of the matter; such is the case of Fernando Diego CAÑIZARES ABELEDO, who by classifying the functions of the state apparatus divides them into internal and external; Among the first considered are the economic, political, ideological, educational, cultural and legal functions (understood within this to promulgate legal norms, execute them and impart justice). The second, that is, the external ones, would be the relations of a State with the other subjects of Public International Law.
When analyzing the multiple criteria explored, we see confusion between what we consider the functions of the State itself, the legal mechanisms or methods that it uses to intervene in the issues that it is called to solve and the purposes of the State itself. Thus, we agree with the criterion supported by Julio FERNÁNDEZ BULTÉ when stating that “reducing the functions of the State to the aforementioned legislative, executive and judicial activities is, first of all, to make a truly exorbitant generalization, since it includes in a single classification very diverse functions such as political, economic, spiritual, social, etc. "
Within the aforementioned functions and based on the aforementioned elements, we consider that the normative function is of singular importance, which is not restricted only to the legislative function itself, seen as that carried out by parliaments with the enactment of laws in a formal sense, but also the one carried out by the Administration when it dictates the regulations and other acts of general effects, with which it also creates, modifies or extinguishes legal relationships protected by legal norms.
In principle, in accordance with the Kelsenian criterion of structuring and hierarchizing the legal system, the promulgation of the formal Law allows the implementation of the constitutional mandate and corresponds to the legislative body, however, the Administration in the exercise of the regulatory power that is recognized, emits a quantitatively greater number of provisions than this body itself in what is considered a rupture of the principle of separation of powers this reality, in fact places the executive in a position of quantitative predominance in relation to the role of the legislature, being, moreover, apart from the normative exercise, the administrative act and the decisions of the courts, essential tools that allow the Administration to fulfill its mission,However, this situation implies a serious risk of violation of the legal order established by the legislature, which is also endowed with a legitimacy that gives it its own integration mechanism as a body that enjoys general representativeness.
The separation of powers as a principle gives state action is endorsed in almost all contemporary constitutions, however the idea of a separation in the literal sense of the powers of the State has been surpassed and is appreciated as the realization of the principle of separation and specialization of functions of the organic apparatus of the State, manifesting itself in the fact that different organs have to fulfill different functions, which benefits the recipient of power, by constituting a guarantee of control of various organs that are entrusted with carrying out the The will of the ruling class, that is, is a way of distributing and controlling political power respectively, and that such functional separation responds to a unique interest as we pointed out in principle.
Influence of European "socialist" constitutionalism in Cuba
The Cuban constitution of 1976, showed the imprint of the concepts on which the construction of "real socialism" was based and we consider it logical, since the extinct USSR and the countries of Eastern Europe were seen, as the previous experience of the attempt to build a socialist society. This Constitution makes no mention of the principle of separation of powers, on the contrary, it endorsed the principle of "unity of power" characteristic of the institutional design put into practice in those States, in which when trying to formulate a socialist theory of Law the state apparatus on the basis of the aforementioned principle, radically denying the theory of opposing powers.Although it must be taken for granted that it was not the same historical conditions that defined the will to build socialism in Cuba as in those states and their doctrinal formulations regarding Law were not copied literally.
Julio Antonio FERNÁNDEZ ESTRADA and Julio Cesar GUANCHE point out about it: “The practical problem of this theoretical discussion is the confusion of unity with concentration of power. The conception of the unity of power, of the undivided power of the people, does not prevent the concentration of powers, because they are different themes: the first concerns sovereignty, the only power is that of the people, the sovereign, and the second involves the representation of sovereignty ”these concepts that are obviously confused giving rise to an organic structure subordinated to elites and even individual people that on behalf of the proletariat in a capricious way led to the implosion of the“ socialist ”system in those countries.
The stated principle of the unity of power exercised in the practice of these states as a concentration of power meant the denial of an alleged socialist democracy, which had little and much less of a socialist democracy, in the sense of socializing in addition to the means of production. political decision making.
The excessive concentration of power in certain bodies favored the detriment of the organicity and institutionality that must become the guarantor of legitimacy and functionality of the sociopolitical and legal system, by confusing functions that, although interlinked in order to build a new type of society, differ and even when they respond to the interests of a single power, they should have acted as a counterpart and guarantee of respect for institutions.
In this regard, the same authors pointed out:
"Such a principle served" socialist constitutionalism "to endow the Soviet state and in particular the so-called nomenklatura with an unprecedented concentration of powers: it provided them with a monopoly on ideology, politics and the economy when historically the reaction against monopoly from only one of these dimensions it gave rise to momentous revolutions and allowed them to realize a monstrous dream of reason: comprehensive state planning of personal and associated life ”
Despite this, in the 1936 Soviet Constitution a functional and hierarchical separation was endorsed that started from the supremacy of the legislative body, followed by a powerful executive and a subordinate judiciary, without a great role in matters of greater national significance, nuanced by the subordination of the powers to the political leadership of the party that became the fourth and most important of the powers.
In the USSR there was a strong tendency for a power elite in party structures to assume administrative functions and even powers concerning the bodies responsible for regulating the life of society in frank denial of the most elementary principles of the postulated "socialist democracy ”That was considered carried out in the Party's mandate.
Professor J. FERNÁNDEZ BULTÉ pointed out: “The socialist state of the Eastern European models was not only a centralized apparatus of bureaucratic power, in the hands of an elite of professionalized officials, but also a state with an absolute incapacity for internal functional adjustments, for reconditioning in search of adaptations to new social and political stages ”.
Treatment of the topic in Cuban today
The Cuban Constitution in force when addressing the principle of legality in its article 10 defines that "all the organs of the State, its leaders, officials and employees act within the limits of their respective competences" and delimits in general the scope of the fundamental organs of the Cuban state apparatus making a clear distinction between its functions, thus establishing that "The National Assembly of People's Power is the only body with constituent and legislative power in the Republic" and in its article 95 the Council of Ministers is defined as the highest body administrative executive, regarding the jurisdictional activity establishes that "the function of imparting justice derives from the people and is exercised in their name by the People's Supreme Court and the other courts that the Law establishes"
Other functions of the State are endorsed, such as the policy carried out by the National Assembly itself as a representative body of the people and the Communist Party of Cuba, the economic function of the State in a country with a planned economy and where the main means of production are State property in addition to the Control function, etc.
In the constitutional reform carried out in 1992, the principle of unity of power was nominally suppressed, which meant an important step forward in relation to the separation and distinction of functions, as evidenced by the Electoral Law establishing the direct election for the conformation of all the assemblies, the promulgation of the Law of revocation of the popular mandate, the laws of the courts and the prosecution, the creation of the General Comptroller of the Republic and in the political order the projection of the party of no supplant the field of action of the administration, which has been the subject of repeated approaches by the president of the councils of state and ministers and in turn 1st Secretary of the Communist Party of Cuba Raúl Castro Ruz.
These measures demonstrate more than an intention a specific action regarding the delimitation of the functions of organs and agents of the State and consequently the responsibility of each of them with them. However, we appreciate that there are still issues to be outlined to achieve the intended organicity, such as the promulgation of a Constitutional Control Law, the expansion of the tuning fork of issues to be resolved through the administrative contentious process, the promulgation of an Administration Law that expressly configure, frame and delimit the margins of action of the same in the exercise of the powers that are recognized in the legal system, which will contribute to the achievement of effective institutionality.
