Types of Legal Domination and State Models: A Comparative Analysis
Social State Based on the Rule of Law
This type of state is based on the conviction that the legal recognition of individual freedoms is indispensable, but insufficient. For a state to be fair to its citizens, it must not only adhere to the law but also correct the deficiencies and inequalities generated by the system itself. To make many individual freedoms effective, it is also necessary to ensure a minimum level of social equality among citizens. The state must intervene directly in the realization of rights and carry out a fundamental task in the social sphere. Thus, it is understood that among its functions, the state must also promote the material well-being and economic security of its citizens. In particular, the state is responsible for organizing free healthcare and education systems.
Types of Legitimate Domination (Max Weber)
Traditional
Power is legitimized by resorting to tradition (families, dynasties). It seems natural that they should continue to rule. It is based on the belief in its hereditary or divine character. It’s difficult to argue rationally for or against this kind of authority. Examples include tribal leaders and monarchies.
Charismatic
Power is legitimized by the ruler’s charisma, depending on the qualities they possess to mobilize other people. It is similar to the traditional basis of the leader’s qualities but is considered personal and not hereditary. The leader’s prestige is based on the emotions they provoke. An example is a leader such as Hitler.
Rational-Legal
Power is legitimized by resorting to the law. Law is what confers authority because it emanates from the popular will (democratically established). It is the result of an agreement among citizens and is the only type of fully rational authority that allows arguments for and against it. Current democracies exemplify this type.
Legal Systems
Derecho Objetivo (Law)
A set of principles and norms that govern human relations in society. It is a code broad enough to address all aspects that can arise in every personal or social interaction.
Positive Law
A system of rules established by a particular state that is applicable at a particular time and place, known as the legislation of a country.
Natural Law
A set of principles and rules that are universal and immutable. It establishes what is fair.
Derecho Subjetivo (Right)
The faculty or ability of every human being to do what is allowed according to their dignity (human rights).
Principles of Legality and Legitimacy
Principle of Legality
This principle consists of being in conformity with the law, both in relations between the state and citizens. This principle belongs to the field of positive law. Something is legal if it matches the current laws, although these laws may seem unfair.
Principle of Legitimacy
Often contrasted with the principle of legality. What is legal may not be legitimate, since what is legitimate is what coincides with justice and morality. A legitimate state will try to ensure that what is legal is also fair.
Legal Theories
a) Legal Iusnaturalism
Defends the existence of natural rights of the individual that are universal. The main function of the state is to protect and ensure that individuals can enjoy these natural rights. From that perspective, the positive recognition of these fundamental natural rights in laws is interpreted as a formal recognition by the state of a series of previous ethical principles (Universal Declaration of Human Rights).
b) Legal Positivism
A position radically opposed to iusnaturalism. There is only a legal norm, a law. Any belief in the existence of some valid law prior to positive law is interpreted by legal positivists as the result of an unacceptable metaphysical position.
c) Legal Realism
From this perspective, the positivization process does not mean the declaration of preexisting rights (iusnaturalism) nor the constitution of new rights (positivism) but is a further requirement to take into account for the effective and real enjoyment of certain moral and political demands of freedom and justice.
Economic and Political Models
Liberal Model
Adam Smith, during the 18th century, best linked both its political and economic dimensions. This model defends that the state’s main purpose is to ensure the economic growth that will lead to the prosperity of nations by enforcing laws. Smith defended the non-intervention of the state in the free market because the welfare and wealth of a society depend on these three factors:
Individual Egoism or the Pursuit of Self-Interest
In commercial exchange, the consumer is willing to pay the minimum, and the producer wants to earn the maximum.
The Law of Supply and Demand as a Market Regulator
When there is high demand for a product and a low supply, the prices of that product go up, while if demand falls and supply increases, prices go down.
The Division and Mechanization of the Productive Process
With the increase in productivity, as a result of a more efficient division of labor and mechanization, production costs fall. That way, the products can be sold cheaper.
The free market regulates itself without the intervention of the state to achieve the most significant benefits for the whole of society.
Marxist Model
Based on the theory of “historical materialism.” According to this theory, it is possible to explain social and political changes from the changes taking place in the material base (economy) of a society, specifically the “modes of production.” From Marx’s point of view, every transformation of society requires a previous transformation of the economic base.
Marx thought that the mode of production could be understood as a structure composed of three parts: the economic structure, the legal-political structure, and the ideological structure. The economic structure refers to the material basis of a society, that is, its infrastructure or base. The legal-political structure and the ideological structure correspond to what Marx calls the social superstructure.