As man evolved, he had the need to restrict his freedom, and create a collective freedom once said individual establishes his freedom and forms a collective freedom, it is how that human being is part of an already organized and evolved collectivity and creates a being superior to the others, called the state.
It should be noted that the state created by the human being is sovereign, that is to say, the supreme state that governs the entire social conglomerate, through its norms, which inherently have a character of legality and legitimacy, to establish the public good.
The state is that entity superior to anyone and that is a product of the community, it is made up of the following elements: a population, a territory, a government and a sovereignty; These elements are essential for the development of the state in any type of state, since if any of its elements are missing, the state cannot exist.
1.- Object of the theory of the state.
Previous notions about the state.
a) Man in social reality.
b) The authority.
c) The legal order.
d) The state.
When starting the study of the theory of the state, the first problem that we must solve is to determine what is the object of the matter that we are going to study? From the statement of our discipline theory of the state it follows, from what we are going to analyze, but unlike what happens in other disciplines, naming the object of our knowledge tells us little, because it is a very complex field of knowledge.
What is the reality of the state? That is to say, what is the state? Is it just a creation of man or, on the contrary, does a specific category have a real existence within the world of being?
However, when enunciating the state we immediately realize that there is something in reality to which that denomination fits, we feel the presence of the state as something that is found in our social life.
In daily life we notice the presence of the state, through its various manifestations we continually hear talk; of the government of the authority that should never be a despot, of the secretaries of state, of the army etc., we know that there is also the legal order; laws, normative principles, and we attribute it immediately to the state.
From the foregoing it follows that from the fact itself, from its existence, the state confronts us, and offers us a first knowledge, which we could call vulgar, of its reality and that is that, even before knowing it, we live within the state, its reality observes us and absorbs us, we find ourselves submerged within it.
But this knowledge that the experience of the state provides us is not enough for our purpose, the purpose of our study consists of exceeding the limits, of vulgar knowledge, reaching the total scientific and deep knowledge of the state; To achieve this you must achieve your theory.
Previous scientific notions in relation to the state.
Despite the fact that we are living within a state, and consequently that experience provides us with a series of data, which allows us to acquire the notion of it, this notion is confusing and we will only arrive at scientific knowledge of the state.
Even after making the rational interpretation of the political phenomenon, to build that previous scientific notion, we take advantage of the observation of the reality that surrounds us to which we intuitively assign the qualifier d state, the first data that this observation provides us is that we do not live in isolation but in union with other human beings to whom they are linked by the various bonds of solidarity, union of efforts, division of tasks, etc., integrating a human society. We thus discover the first note of our previous scientific notion.
We say the state is a human society established in a territory that corresponds to it structured by a legal order. It necessarily implies the existence of a computer in the state human society, the legal order is created and applied and sanctioned.
First element, the state is a human society, the observation of that society, which as we have noted, is at the base of the state, makes us aware that it is permanently established in a territory that corresponds to it to the exclusion of other societies state.
That they are also living in their respective territories in this way, we add another piece of information to our previous notion and say that the state is a human society, the second notion established in its territory, which corresponds to it if we continue to reflect on the acts of our observation, we notice that The existence of a human society necessarily implies the presence of a legal or normative order of conduct.
It is created and applied sanctioned by a power that has the necessary faculties for that object finally and independently of another power that is superior to it and therefore is called sovereign, the above allows us to say that the state; It is a human society established in a territory that corresponds to it, structured and governed by a created legal order defined and sanctioned by a sovereign power.
If we continue to reflect again on the human society that is at the base of the state, we realize that it does not remain immobile but that the human beings that make it up develop an incessant activity with the presence of the legal order that governs society and therefore This necessarily carries within itself a teleology, that is, the common good.
Molded by the legal order, the activity of the state society has the same teleology, the purpose of the legal order, and as the ultimate meaning of this order is to realize the highest values of human social coexistence, the purpose of the state occurs to this object the content of this teleology is expressed in obtaining the good but as all the members of that society have to participate in this obtaining, it is a public good through coexistence.
Integrated our previous scientific notion of the state, we can realize that the state is an institution that enjoys moral and legal personality to which the legal order is the set of rights and obligations that make it born as a legal person.
Previous analytical definition of the state gathering all the notes of the state reality we can say; The state is a human society established in a territory that corresponds to it, structured and governed by a legal order that is created, defined and applied by a sovereign power to obtain the temporary public good, forming an institution with moral and legal personality.
Second study of the organization and operation of the state to solve it we have to answer the questions How is the state? Consequently we must specify, What is the structure of the state and what are the activities it develops?
Fundamental problems posed by any reflective study about the state
First problem determining the nature of the state, this problem arises when we ask ourselves, What is the state? To solve it, it is necessary to investigate it. What are its real elements that enter into its composition, that is, what are the essential and accidental characteristics that make up its being?
Third determination of the purposes of the state or resolution of the question What does the state exist for? It consists in determining what is the goal to be achieved by the state, towards which its activity is directed.
Fourth determination of the social function of the state this problem is complementary to the above. Why does the state exist? This problem consists of determining what is the raison d'être of the state, investigating whether or not its existence is necessary in view of nature and the situation of man in society. It is about determining the teleology or specific purpose of the state.
What makes it have its own reality different from other social organizations that makes it have its own reality in the society that is at the base of the state, there are many other social groups or associations such as commercial, industrial, unions, sports clubs, political parties, churches, and first of all the base family of society, first than human groups all these contribute to the common good the function of the state is to monitor and structure these groups and their activity.
Fifth problem of the justification of the state It is presented as the question Why should the state exist? This problem is possibly the most important within the theory of the state, since its resolution consists in specifying the legal, moral and other reasons in view of which the state can compel men to submit to its mandates. says its statement this problem is solved by finding the foundations that justify the existence of the state.
The political facts
The state is a political reality, it is a social fact of a political nature, a fact is a reality; It is something that exists in the world of being an example: when men are grouped with their peers establishing a series of relationships we find ourselves in the presence of a fact of a social nature.
These social facts have existed since the appearance of man and will continue to exist as long as humanity subsists in the same way, these social facts have another nuance that specify them as political, the political word derives from the Greek word polis which means city.
The political social fact
It is characterized by having at its base a human community formed by obtaining the common good and thus we have the rulers and the governed.
In the modern state there are social groups that are constituted, in order to obtain or influence the power of the state, for example: political parties.
Political science or political science
It is a discipline whose object is the systematic study of government in its broadest sense, it also includes the origin of political regimes, their structure, functions, institutions, the ways in which governments identify and solve socio-economic problems, and interactions between groups and individuals. important in establishing maintenance in change of governments.
Political science is generally considered part of the social sciences, in its relationship with these sciences it admits two perspectives. Some say that political science occupies a preponderant place because individual and collective questions, which are studied by other social sciences, always have a place in the framework of politics.
As a manifestation of a personal creation, as a professional activity and as an exercise of authority, the opposite point of view is the one that political science requires from its concepts, methods and inquiries.
The forerunners of political science were dedicated to studying the way to achieve ideal objectives questions What is the best form of government? They are considered completely outside the scope of the discipline, it is currently of what it is a place of what it should be, although utopia is placed in the field of political philosophy, today most of the research of political science it is related to specific topics.
Specific issues such as electoral political campaigns, and elections, the legislative process, the executive branch, administrative relations, taxes, social security, international relations, comparative politics, legal decision-making and the actions or influences of the groups involved in bonds, in work, agriculture, religion ethnic cultures, the military, the media throughout the centuries appeared classic works written by the statesman, Roman Cicero by Saint Augustine and Saint Thomas of Aquino by the Italian Nicholas Machiavelli, by the British philosophers Thomas Hobbes John Locke by the French writers Jean Jacques Rousseau and Baron de Montesquieu, and by the German philosophers Emmanuel Kant Hegel and Karl Marx.
Almost all of these authors are concerned with the way in which a society can generate the necessary conditions for the well-being of all its fellow citizens, these works are still valid mainly because they go beyond the material community and also deal with higher values such as justice, equality., freedom and the development of human qualities.
In a general sense, from the scientific point of view, we can define as political the processes, actions and institutions, which polemically define a binding order of coexistence that performs the public good.
State elements
The legal concept of the state is not complete if we do not refer to the legal aspect, the state limits itself by submitting to the legal order that structures it and shapes its activity, the state is subject to rights and duties, it is a legal person, and in this sense it is also a legally ordered corporation.
Jellinek status concept.
The state as a corporation formed by a people, endowed by a power of command, originating and settled, in a certain territory, in a more summarized form the territorial corporation endowed with a power of demand.
Concept of state and its definition.
The analytical definition and the concept of state and we have left it noted provides us with the following elements;
a) the presence of a human society, b) a territory that serves as a permanent seat for that company, c) a power that is characterized by being supreme, that is, sovereign within the same society
d) a legal order that is created, defined and applied by state power and that structures the society that is at its base, e) a peculiar teleology that consists in the communication of the common effort to obtain the temporary public good.
But in addition, the state presents the essential characteristics:
- Sovereignty as an object of power, but qualifying the state itself in its entirety as sovereign. Moral and legal personality as the state is a being with the possibility of having rights and obligations.
Submission to the law.- What does the need mean that the structure of the state and its operation are regulated by an essential legal order.
State elements.
The population.- The theory of the state receives applications from sociology whose mission is to scientifically study human society,
various principles of distribution of the populations of the states.
The populations of the states are grouped in very different geographical conditions of location on the globe, the population is distributed over the globe, that is, there is no state that covers the entire world population, but if we try to find out the causes of This division, what criteria would we follow to explain the distribution of the population in various existing states?
The first criterion is the territorial one according to the geographic space in which they are located, their correspondence to different states is explained.
Second criterion.- It is taking into account their characteristics, that is, we group populations that present homogeneous characteristics; the same race, the same language, etc. Finally, the population of the same territory is taken into account and if it is also seen that the inhabitants of a territory present characteristics to explain that they form a different state.
Various conceptions of the idea of nationality.
Nationality is also a concept that is used in the distribution of the population, men are grouped according to the nationality they have. What is nationality? To get to establish we must start from the analysis of other concepts such as society, people and nation and in this way we will be able to explain what nationality consists of, according to Professor Alejandro Groppali it is the union of men based on different ties of solidarity.
Regarding the concept of population, we see that it is used to designate a group of men in an arithmetic sense; the population is said to be the number of inhabitants of a state. People is more restricted this word is used to designate that part of the population that has full civil and political rights.
According to Manzini, the population is a natural society of men with unity of territory, of language customs with a common virtue and conscience.
But we have to distinguish between nationality and nation the first leads to the integration of the nation nationality is a certain character, or set of characteristics that affect a group of individuals making them related and distinguishes them from foreign groups that have other peculiar signs, Of course, within those characteristics that determine nationality are the following elements: language, religion, customs, life in common, memories, which also have in common and signify a historical past that is recognized as their own.
In addition, the will to carry out large companies in common, from here we detach the materials from two types of elements, fundamentally finding the real and linguistic factors, the geographical element, we find the desire to live collectively founded on the historical past and the political conditions that of good or badly condition the life of the state.
The soberand
Historical evolution of sovereignty, having examined power, we must take into account one of the attributes of power, which is sovereignty. We will analyze sovereignty in the different stages of history, at first sovereignty is a concept of a political nature that most Later it evolves into a concept of a legal nature.
Sovereignty in Mexico
The first Mexican constitutions of 1814 and 1824 contained in their first articles the idea of sovereignty after making it of the individual guarantees of nationality and citizenship.
Constitutional Article 39, national sovereignty resides essentially and originally in the people. All power emanates from the people, at all times, they have the right to alter and modify the form of government.
What does it mean that national sovereignty resides essentially and originally with the people? Are the concepts of people and nation equivalent? What is national sovereignty? By nation it was understood that it was the history of a country which had the right of permanence to prevent any violent movement, on the other hand, the notion of people is the thought of Rousseau is the idea of the French Revolution, the idea of freedom is the desire of the men to achieve happiness and fulfillment of a destiny.
When saying that sovereignty resides essentially and originally in the people, it can be pointed out that in Mexico, unity has been formed throughout history and that as a nation it has a projection towards the future but without dividing from its past and less from its present, national sovereignty resides in the people of Rousseau in the people that works for their happiness and essentially resides and originally means that it has never ceased to reside in the people, although force has dominated it does not for that reason prescribe in its favor because one One of the elements of its sovereignty is its imprescriptibility and it does so in an "essential" way because at all times the people is sovereign and never delegates its sovereignty but appoints its representatives who are under its instructions and command.
Historical evolution of sovereignty according to Jellinek.
It tells us that this concept has to be investigated by analyzing, the historical evolution - political sovereignty arose by virtue of the need to explain historical events of political communities.
Greek thought
Here a form of government arose the autarky the states that followed that form was a perfect state the autarky is to base oneself without depending on others is what specifies the state. The autarchy is not a legal category but an ethical one because it is about The old polis possesses the moral quality of isolating itself from the world because it has within itself all the elements to satisfy, all its needs of the individuals who form the polis, does not need the barbarian world or other Greek cities.
But in this concept of autarky but it does not refer at all to the self-determination of the state in its conduct, in its right in its government, administration or in its internal or foreign policy.
Rome.
Roman thought takes into account in all its reality their situation of prominent power over the other states that prevented them from specifying the characteristics of that power that they simply considered had an indisputable supremacy and in this sense they spoke of it as »majesties - potestas power majesty expressing with those words the power or force of the empire of Rome the power and military force of command; but without explaining anything about the precise content of that power, neither of the state nor of the independence of Rome, with respect to foreign powers.
Rome, despite its growth and strength, did not reach a theoretical formation of the concept of the state as a consequence of that element of the state that is power and its attribute sovereignty.
Middle Ages and modern times
In the Middle Ages due to the enormous prestige of Aristotle who continued to uphold his political doctrine autarky to take this as a specific ingredient and fundamental characteristic of the perfect state.
In modern times Grotius continues to adopt this thought and the case of Grotius is curious, who is considered by some to be the founder of international law, a legal order that implies the relationship between states, a relationship that could not exist by virtue of autarky if it were in In reality, the characteristic of the perfect state is true, since a state, by supplying itself absolutely in no way, would have to enter into relation with other states to obtain from them elements that they already possess.
Sovereignty as a legal essence from Bodino
We have seen how in ancient times and in the Middle Ages the political doctrine did not provide important help to the study of sovereignty, the struggle between the different powers made the characteristic that is sovereignty as the supreme power appear, in the 16th century we already find a construction in relation to sovereignty with the thinker Bodino this author says that the republic is a right of government of various groups and what is common to it with sovereign power. We no longer speak of autarky but rather the republic is defined, that is, the state by virtue of two elements, a human element that forms a community, and the sovereign power under which the human element is subject.
Definition of sovereign Bodino power.
He affirms that a republic is only one that has a sovereign power, the definition of sovereign power, is the absolute and perpetual power of a republic, Bodino specifies that sovereignty is:
- Indivisible.Imprescriptible.Inablenable.The power in Francis.
He lived between the fifteenth and sixteenth centuries said that there is no power but from God, that is, all power comes from God.
Power is given by God to the state who to act it, to develop it says God entrusted to one or more individuals who are the rulers but they are also subject to the laws, they are not above them.
Father Mariana.
This thinker also belongs to this time, he considered that power resides in the republic in the state who transmits it to the monarch but this is not only subject to the laws but if he breaks them and commits injustices he can even be killed by individuals.
Father Mariana comes to justify the tyrannicide, a monarch who did not respect the law was killed.
The republic the state is superior to the king is limited by fundamental rights of the people and must keep the laws and submit to the will of God and public opinion.
Doctrine of Hobbes John Locke, Rousseau.
Power is constituted in the resignation that each individual makes of their right to do what they want in favor of a man or group of men, the origin of power for these authors is the social pact to create the state that ends, to the civil war of all against all, of the natural or primitive situation in which there is that war of anarchy, lack of government, in which man is man's wolf.
In this way of renunciation of all rights in favor of the ruler, that is, the primitive state of nature of man who enjoys full freedom could not achieve, through the help of his fellow men, satisfy all his needs, so men consider that it is convenient to sacrifice some of that freedom and to constitute a political community emerging what is The Social Contract.
The organization of the state.
The structure of the state is made up of organs, the organs of the state the activity of the state manifests or is displayed through the actions of its rulers as part of the state structures that are called organs.
The particular structures that exist within the state are those that have the mission of carrying out their activity, carrying out state acts and which are called organs.
These bodies as a whole make up the government, which are not all of the same category; they have different functions, and it follows that they have equally different structures.
Classification of state organs.
As we have said, the structure of the state is composed of organs in an organized form, there is a plurality of immediate Jellinek organs because their character of organs is an immediate consequence of the constitution of the association itself.
An immediate body can be formed by a single individual, for example: absolute monarchies in which the monarch can have concentrated on whether all state power was the only immediate state body.
Immediate bodies are also groups of individuals with attributes of power, derived from the same constitution as the Mexican state, the holders of the executive power.
In the member states they also have the character of immediate organs since they are vehicles of the first order in the performance of state power.
Classification of the immediate organs of the state.
There are the creators and the created.
- Primary and secondary Dependent and independent Normal or extraordinary.
Creative organ is the one that gives rise to another organ that is thus created organ for example: the electoral college, is a creative organ and the body that they elect is a created organ.
Primary body.- It is the secondary body who expresses its will through its representatives, who is the secondary body, for example: the legislative bodies as they represent the will of the people, which would be the primary body.
They are dependent when they do not need the collaboration of other organs of the state to express their will, for example: the laws emanating from the legislature have to be enacted.
The organs are independent.- When they do not need another organ to carry out their activity, the normal or ordinary organs, as their name indicates, are always in the structure of the state for their operation.
Extraordinary bodies.- They are those that only exist when special circumstances concur.
Characteristics of state organs
The immediate organs present a fundamental characteristic that they are not subject to the power of another organ in the full exercise of the functions that are proper to it and are completely independent and as sovereignty is distributed it distributes power, the structure of the state is more complex and more organs appear.
Relations between the organs of the state.
The immediate organs characteristic of the modern state are executive power, legislative power, judicial power.Historically, a struggle has developed between these powers because there has always been a tendency for some of them to be placed in a higher place than the others in England, the struggle is typical. between the parliament and the monarchy, but it is advisable that sovereignty is distributed in its exercise and that no state organ is placed in a position to dominate the others.
In Mexico, according to the constitutional order, there is no supremacy of any of the state organs, in fact the executive power traditionally is on a higher plane than the other powers.
The mediate organs of the state.
According to Jellinek, they are mediated organs of the state, that situation does not rest immediately on the constitution but on an individual commission, they are responsible and are directly or indirectly subordinate to an immediate organ.
Classification of mediate organs.
- Dependent or independent Simple or of multiple competences Optional and necessary.
The executive power, an immediate organ of the state, can freely create mediate organs that help it in its activity, they are optional.- When the executive has at its discretion to create those organs that have to assist in the development of its functions.
A non-mediated body or created by the legal body is the Municipality is a mediate body since it helps the executive power to the administrative one, in the development of its functions within a certain spatial sphere and not precisely when the executive warned to create it, but rather its structure it is fixed by the legal order.
Within the Municipality it also has immediate organs; the executive authorities of the same and are mediated those constituted by activities that correspond to civil servants of second rank of that same municipality within their special spheres of competence.
The hierarchy.
It is understood according to Groppali as the ordering by degrees of several different bodies according to their specific subordinate competencies, one to the other in order to coordinate their activity, in view of the unitary purpose of the state.
The functions of the state.
Classification of the functions of the state; in all state activity there must be an activity aimed at formulating general norms, which must firstly structure the state, and secondly regulate the relations between the state and citizens.
In addition, the state must have a function aimed at protecting the legal system by defining the precise norm to apply in particular cases, it is the jurisdictional function.
Act promoting the satisfaction of citizens by promoting the goods and progress of the community.
The administrative function the administrative activity that differs from the jurisdictional function, since the legislative function aims to form the law and the jurisdictional function, protect it and act on it, the administrative function for its part is aimed at satisfying a specific need or obtaining the good, the utility that the legal norm must guarantee.
Formation, modification and extinction of states.
States are born, modified or extinguished, we have already studied the origin of the state according to various sociological theories, but now what matters to us is the origin of the state from a legal point of view.
Groppali classification.
He considers that there are two processes of formation, primary and secondary, but the formation of the state is different when it arises directly where there was no other state, from the formation process when there was already another political organization in the same place.
Groppali also divides the two formulation procedures: primary and secondary:
Immediate and direct forms by one's own impulse, and immediate forms — which are the impulse of other states.
Indirect forms are those that take into account the birth of one state derived from the extinction of another.
Modification of the states occurs when some of the constituent elements the population, the power, or the territory, the numerical modification of the population refers to the material force of the states' economic potential; but its increase or decrease has no existential significance.
Machiavelli says for a revolution to be successful it must be guided by the public good, the revolution modifies the state as a justifying means when its purpose is to obtain greater respect for human life and better social justice that cannot be obtained through legal evolution.
Causes of extinction of states
Fusion occurs when one or more states combine and merge with one or more states, giving rise to a new state.
Incorporation is when a state is incorporated by becoming extinct in this way, in another pre-existing state it is magnified by virtue of that incorporation by absorbing the elements of the other state.
The fractionation of a state is extinguished when the fractionation gives rise to new states, each of the various parts into which it is divided arises.
Forms of government and state
The monarchy and the republic is the typical government of an individual, the supreme power lies in a single person, who is the monarch or king, hereditary succession of office is one of the characteristics of the monarchy and this is regulated by the laws of the state.
Another case of a compound state is the royal union, this takes place when two or more monarchical states have a single king and for that reason, by virtue of a treaty they create common organs of government.
Dictatorial executive government
Faced with the failure of the monarchical and democratic regimes, humanity looked for various forms of political organization that in turn have collapsed, such as, for example, the executive power, dictatorial within this form of authority government, is concentrated in one person, president or first. Minister who is supported by a powerful party that acts as a single party and whose members enjoy the respect of the citizens in opposition.
Autarky
The supreme power of the state resides in a single individual in his performance governing his own citizenship in this government, there is no positive right if not that this is created by a subject who exercises power and can vary it at will.
conclusion
In this Theory of the State course we have studied the origin of the state, as well as its elements; territory, population, government, sovereignty, since as we know a state could not exist without these elements, we also study what refers to the different types of state, it should be noted that in our country there have been several types of government, among which I can mention, they are; an absolute monarchy that occurred from the conquest to independence, an empire that did not last long, a dictatorial executive government system, as well as a centralist unitary state, in which it had many economic and political repercussions for the country.
Finally, a representative and popular democratic republic and the one that currently governs us, in short, these systems of government have had an important role in the life of the different states, prevailing in some of them a benefit for the community although sometimes it is not achieved For political reasons.
Personal comment
In this course we have studied the state in its different types or meanings and we learned to differentiate the state between one and the other, which is something very important, which should be emphasized.
Bibliography
State theory. Francisco Pohrua Pérez. Editorial Porrúa, s. A. Mexico, 1954.
Theory of the state Hermann Heller editorial fund of economic culture.
