State Power and Legitimacy: From Monarchy to Federalism
According to Hariou, constitutional state has defining features:
Political Power (potestas + autoritas): Independent of economic and religious influences.
Overlap and Centralization of Power: The state is above others and tends to centralize power, although sometimes it decentralizes power (e.g., CCAA).
Civil Power: Military power is subordinate to civil power. Historically, there have been attempts to limit military power due to its strong influence.
Temporal Power: Power is not religious.
According to Max Weber, the state has a monopoly on legitimate physical force. Various kinds of legitimacy exist:
Traditional Legitimacy: Obedience based on tradition (e.g., a monarch and their heirs).
Charismatic Legitimacy: Obedience due to extraordinary qualities of the leader (e.g., hero, warrior, prophet, demagogue).
Democratic Legitimacy (Rational or Legal): Power emanates from the people, applied through legislation, and is rationally organized.
Effectiveness Legitimacy: Power is legitimate because it achieves desired results and societal progress. Sovereignty resides in the State:
Absolute Monarchy: Sovereignty in the King. Liberal State: Sovereignty in the nation (based on census suffrage).
Today: Sovereignty in the people (all nationals of the country).
In practice, sovereignty is exercised by representatives (government, parliament, etc.). Carl Schmitt argues that sovereign power lies with those who decide on the exception. Today, sovereignty is said to be in crisis:
Internationally: Some attributes of sovereignty are transferred to supranational organizations (e.g., the EU). States are not always equal in power, and interventions occur without consent. Domestically: Remedy Sanchez argues there is no crisis of sovereignty, as states freely transfer power to organizations. Violations of international law (e.g., U.S. invasions) are occasional, and international law allows interventions for humanitarian reasons (International Tribunal).
FEDERAL STATE
A federal state is a union of states, each part of a top-level state organized by its constitution. They submit to a central authority (Federal Power) while retaining broad constitutional autonomy (judicial, legislative, and administrative).
Federal Power (centralized power of the Länder) and State Power (residual power of the states).
The federal state is superimposed on all its component states. Federal states have two sides:
Outwardly: The Federal Government appears as a single, centralized unitary state with a single legal personality internationally. This differentiates it from a confederation.
To the outside world, there is no distinction between a federal and a unitary state.
Inwardly: The federal state is built on two principles:
The Principle of Autonomy: State entities have legal personality and broad constitutional powers (each state has its constitution), legislative, administrative, and judicial.
Crucially, the division of power between federal and state power can follow several possibilities:
1. List federal powers, with all other powers conferred on the states.
2. List state powers, with the rest conferred on federal power.
3. Create two lists, one for state powers and one for federal powers. A residual clause in the Federal Constitution determines responsibility for unlisted powers.
4. Create three lists: federal powers, state powers, and shared powers. A residual clause is necessary.
A prevalence clause clarifies which law prevails in case of conflict.
The Principle of Participation: The Federal Constitution establishes measures to account for the reality of the Länder.