The State and Constitutional Systems: Origins and Evolution
Unit 1 – The State: The Process of Training, Concepts and Elements
1. The Concept of the State
- In ancient medieval times, status (hence the word “state”) referred to the status of a person or designated a group characterized by a certain condition.
- At that time, decisions were heavily influenced by religion. Power relations were based on submission and loyalty of members to feudal lords and/or the King.
- This meant that there were many centers of power. However, the seed of the state can be found in independent cities that had rebelled against the papacy and the Emperor. They established a single center of power.
- In “The Prince” (Niccolò Machiavelli), the term “state” is used for the first time. He uses it to refer to “a policy characterized by stability and continuity in the exercise of power.”
2. Elements of the State
There is no possibility of the existence of a constitution without a state. It is therefore very important to know the elements that define a state:
- Territory: It is necessary to establish boundaries on the territory in which each organization will establish its sovereignty.
- The People: A group of people living in the territory and possessing the nationality of the State. They are not subjects but citizens. For many years they were called a nation, a distinction very important in differentiating between national sovereignty and popular sovereignty. However, with universal suffrage, the distinction is less significant.
- Power: The authority is a group of people who have the ability to exercise power within the territory. This is sovereignty.
Unit 2 – Origins and Evolution of the Constitutional System
1. Origins of Constitutional Law
- The first name of constitutional law was “political rights,” and it was responsible for examining the rules on the organization and operation of political power.
- Until the 18th century, Public Law was composed mainly of rules of Roman law and canon law. Subsequently, it was completed with part of Civil Law.
2. Emergence of the Liberal State
- The first constitution in history was in the UK, because it was the first to establish a parliamentary system, one in which the executive and the legislature have a collaborative relationship.
- In Britain, the 13th century saw the approval of the “Magna Carta,” the first document that established limits to the king’s power, outlining a series of rights to be observed for the feudal lords. However, one cannot speak of constitutionality in the modern sense, as it lacked the characteristic of generality. It was not a written law, like the present ones; it is historical, comprised of a number of documents that had been written over time.
3. Birth of Constitutionalism
- Constitutionalism was born from the Euro-Atlantic revolutions (France/America), at the time when the first written constitutions arose. The constitution at that time was understood as something unchanging, but that was modified as the government did.
- The first written constitutions are:
- Constitution of the United States, 1787: It was initially made up of only a part that structured the state. Over time, it was realized that it should also include the rights and duties of citizens, but it could not be changed since the reform system was too complicated. To fix this, amendments were included, a kind of attachment to the constitution where these issues are addressed.
- French Constitution of 1791: It was constructed with knowledge of the American Constitution and drew inspiration from it in some respects. Equality was not the key point; instead, it focused on the division or distribution of powers. It established the executive power in the king, the judiciary in judges (who had been previously appointed by the king), and the legislature in an assembly elected through census suffrage. All this is reflected in the constitution, but before it, the “Declaration of the Rights of Man and of the Citizen” was written.
- Spanish Constitution of 1812