Understanding State Formation and its Essential Elements
Item 2: Forms of Power
The emergence of the modern state (15th century) is a significant structure in history. The modern state was characterized by absolute monarchy, among other features. In addition, the modern state is determined by the community, territory, and power (absolute power. Later, doctrines emerged questioning why one should obey this power). Therefore, discussions of the state began in the 15th century with Machiavelli. Before that, communities were organized politically and are called pre-state forms. Since the emergence of the concept of the state, discussions have differentiated various types of states. The first state is recognized as Spain, and the second as Portugal.
The first of these pre-state forms are the ancient empires, such as the Chinese and Persian empires, which structured their communities very differently. The following systems are found in the Greek polis. The characteristic of the Greek polis is that they were city-states, notably Athens, based on direct democracy and direct popular participation, and Sparta, based on a collectivist totalitarian system. The main institution was the assembly. The Ecclesia, or Athenian Assembly, was composed of all citizens over a certain age.
Another pre-state form would be the Roman civitas. Under that name, there is a concatenation of different ways of organizing the city of Rome. Two important moments in the history of Rome are its founding in 753 BC and the fall of the Western Roman Empire in 456 AD. Initially, it was established as a monarchy, which led to a republic, then to a principality, the empire, and finally its destruction.
Following this form is that of feudalism, whose main characteristic is the dispersion of power coupled with political and territorial breakdown and the loss of Roman law. The pyramidal character of society was based on feudal covenants, which were all private. Feudalism was balanced by two opposing forces trying to concentrate power: the Papacy and the Empire. The papacy claimed that God gave divine power to the Pope, who then bestowed it upon emperors.
Facing these two powers (Empire and Papacy), national monarchies emerged in the Roman territories, achieving independence from the Emperor and the power of the Pope. The idea of these monarchies emerged on the basis that Rex Imperator in Regno Suo, meaning the king is emperor in his kingdom, makes his own rules, and does not want to be part of the Empire. The king’s religion determined the religion of the state. So much so that many countries were broken off by religious strife, and the king had to begin recognizing the religious freedom of different countries.
These monarchies turned to the estates. These are forms that rely on the connection between the Rex and the Regnum. In other words, the king no longer ruled alone because he could not obtain the money needed to fund the monarchy and needed the regnum: the nobility represented in the first assemblies, emerging in the 12th century and later. Subsequently, the representation of the bourgeoisie and cities was also needed. What led the king to ultimately impose himself on these assemblies of nobles? The emergence of armies financed by the bourgeoisie, relegating the nobility to the background. There was also a management and bureaucracy in service, and it came with a much more structured character, with increasingly delimited competencies.
Furthermore, basic elements arose that allow us to speak of the emergence of the state:
- Material elements (Community, Territory, and Power)
- Instrumental elements (Law, etc.)
Item 3: The Elements of the State
The emergence of the term “state” is due to Machiavelli in The Prince. He states that “states and sovereignties that have had and have authority over men were and are either republics or principalities. Principalities are either hereditary, with a long line of princes, or new.” The appearance of the state as an organizational form, historically, also arises in the 15th century.
State elements are:
- The Community (the population, the human element of the state)
- The Territory (the physical space on which power and law are projected)
- Power (political power as a form of collective organization to achieve the purpose of this community)
The Community
The Community is the first element of the state. It is primarily a human group: the people. There is a social base, a group of people who, because of cultural, linguistic, ideological, or other factors, constitute a community and decide to allocate power to a leader. The population is considered a set of individuals living in a territory steadily. Nationality is the legal bond that unites an individual with the state. This confers rights that are smaller in the case of the concept of a citizen. Our Constitution grants political rights to nationals of legal age who are not disabled or incapacitated, as determined under the General Electoral Regime Law for its exercise. For example, the right of universal suffrage for nationals and, in certain cases, to foreigners residing in the territory. It confers citizenship, including the right to vote and be elected. These rights are enshrined by the Constitution as fundamental rights in Article 23:
- Citizens have the right to participate in public affairs directly or through representatives freely elected in periodic elections by universal suffrage.
- They also have the right to equal access to public functions and offices, with the requirements specified in laws.
The Territory
Secondly, the Territory is the physical space on which power and law are projected. It is also the physical space on which the population is based. The problem with this is that it varies. Since the advent of the State in the mid-15th to 17th centuries, one of the main problems was the changing nature of borders. Historically, we find that from the 17th century, borders in Europe became stable due to certain treaties such as the Peace of Westphalia.
Regarding the territory, a series of questions arise: Was the territory “projected into the sky and the ground”? And what about the sea? Today, the composition of the territory includes the following:
- The land space, that is, the land area within the borders and their projections into the subsoil. Does the Constitution collect the definition of Spanish territory? No, it is an open clause.
- Inland waters: those within the territory or land space, such as rivers, lakes, and the sea space enclosed by straight baselines (imaginary lines that connect the most prominent points of the coast).
- Maritime Territory, subdivided into:
- Territorial sea: the maritime space extending from the base lines drawn parallel to twelve miles out to sea.
- Contiguous zone: the area comprising the twelve miles following the Territorial Sea. In this area, States can exercise police powers, immigration, customs, and sanitary measures.
- Exclusive economic zone: the area of the sea that extends up to two hundred miles. The State is entitled to the economic exploitation of the resources that are in this extension.
- Floor and subsoil of the territorial sea and exclusive economic zone.
- The airspace, the air space above the ground.
- Ships and aircraft with the flag of each of the States, in this case, Spain.
- The territories of our embassies abroad.
However, the concept of territory in doctrine allows for the distinction between three different concepts or nuances:
- Territory-object: this concept is rooted in the concept of the State. According to this thesis, the territory of the domain would be a kind of property or rule that the sovereign has.
- Territory-subject: for this theory, the territory would be, without further ado, one of the constituent materials of the State (theoretical conceptions).
- Territory as the limit of jurisdiction or state sovereignty: the conception of the theses of Kelsen and the Vienna School, the territory is only the space on which the application of State law is projected.