CONCEPTS OF STATE Origin Elements On the Origin

CONCEPTS OF STATE Origin & Elements

On the Origin of States

Theories on the Origin of States Divine Right Theory Social Contract/Compact Theory Necessity or Force Theory Paternalistic Theory Natural Theory Instinctive Theory Economic Theory

Divine Right Theory Let every person be subject to the governing authorities. For there is no authority except from God, and those that exist have been instituted by God. Therefore he who resists the authorities resists what God has appointed, and those who resist will incur judgment.

State was created by God. The authority to govern the people was ordained by God upon rulers who were regarded as of divine descent. A ruler’s divine appointment legitimated the ruler’s rule. The ruler’s exercise of power cannot be questioned for to challenge the ruler was to challenge God’s authority. The ruler was subject to judgment only by God, not by his subjects or by any agency.

Social Contract Theory Early states must have been formed by deliberate & voluntary compact among the people to form a society & organize government for their common good. The ruling authority was established because of political compact where the people would render obedience to the government taken into account an upright ruler. � The people had the right to desist from rendering obedience when the government refrains from governing the society justly. The people has the right to resist and the right to revolt when the government oppresses them.

Variations of the Social Contract Theory Thomas Hobbes � Viewed man in a “state of nature” as despicable, nasty and brutish, likened to jungle life where the stronger animals prey on the weaker ones. � Hence, man’s desire for self-preservation, order & peace could be attained only if they surrendered all their natural rights & submitted their will to an absolute sovereign monarch.

John Locke � Men are rational beings & could make use of natural law for their own good. � Men needed the state to maintain peace & order, provide them with essential services, & settle their quarrels and conflicts. As a result, men voluntarily consented, they created the state for the purpose of promoting & preserving their natural rights to life liberty & property.

Force Theory Might makes right. Only force rules. Force is the first law. – A. Hitler The state came into existence out of conquest, force or coercion. Before the state existed, there were always men strong enough to assert their leadership and power through force, conquest or violence. � They subjected the people & compelled them to obey their laws.

On the Elements of State

State vs. Nation State It is a political concept. Not subject to external control. A single state may consist of one or more nations or peoples. Nation It is an ethnic concept. May or may not be independent of external control. A single nation may be made up of several states.

State: Defined Community of persons, more or less numerous, Permanently occupying a fixed territory, And possessed of an independent government Organized for political ends to which the great body of inhabitants render habitual obedience.

Essential Elements of a State People Sovereignty State Government Territory

People Inhabitants of the State, the number of which is capable for self-sufficiency and self-defense and of both sexes.

Territory It is the fixed portion of the surface of the earth inhabited by the people of the State. Aerial Domain Terrestrial Domain Fluvial Domain Maritime Domain

Government The agency or instrumentality through which the will of the State is formulated, expressed and realized. � Functions Constituent – it constitutes the very bonds of society and are therefore compulsory. Ministrant – those undertaken to advance the general interests of society. � In this jurisdiction, the traditional classification of governmental functions is not relevant. All functions which were traditionally regarded as merely ministrant & optional have been made compulsory by the Constitution.

Forms of Government As to number of persons exercising sovereign powers Monarchy Democracy Aristocracy • Absolute • Limited • Direct or Pure • Indirect, representative or republican As to extent of powers exercised by the central or national government Unitary Federal As to relationship between the executive and the legislative branches of the government Parliamentary Presidential

De Jure & De Facto Governments De jure – has a rightful title but no power or control, either because the same has been withdrawn from it or because it has not yet actually entered into the exercise thereof De facto – actually exercises power or control but without the legal title. 1. 2. 3. De facto proper – government that gets possession & control of, or usurps, by force or by the voice of the majority, the rightful legal government and maintains itself against the will of the latter; Government of paramount force – established & maintained by military forces who invade & occupy a territory of the enemy in the course of war; and Independent government – established by the inhabitants of the country who rise against the parent state.

Doctrine of Parens Patriae The government as guardian of the rights of people may initiate legal actions for and in behalf of particular individual. (Gov’t. of Philippine Islands vs. El Monte de Piedad, L-9959, December 13, 1916)

Sovereignty It is the supreme & uncontrollable power inherent in a State by which that State is governed. Kinds Legal – the authority which has the power to issue final commands. Political – the power behind the legal sovereign, or the sum of the influences that operate upon it. Internal – the power of the state to control its domestic affairs. External – the power of the State to direct its relations with other States [Independence].

Characteristics of Sovereignty Permanent Imprescriptible Exclusive Sovereignty Inalienable Comprehensive Indivisible Absolute

Act of State An act done by the sovereign power of a country, or by its delegate, within the limits of the power vested in him. � An act of State done by the political departments of the government and not subject to judicial review. It cannot be questioned or made the subject of legal proceedings in a court of law.

Royal Prerogative of Dishonesty Article XVI, Sec. 3 – The State may not be sued without its consent. Basis: � Indiscriminate suits against the State will result in the impairment of its dignity. � “There can be no legal right against the authority which makes the law on which the right depends. ” – J. Holmes � The demands & inconveniences of litigation will divert the time & resources of the State from the more pressing matters demanding its attention, to the prejudice of the public welfare.

Determining Test: If, assuming the decision is rendered against the public officer impleaded, enforcement thereof will require an affirmative act from the State, then the suit is against the State. If, however, the officer may by himself alone can comply with the decision of the court without involving the State, then it will not be considered as a claim against the State.

Foreign states are also immune from suits filed in local courts. � Reason: Principle of the sovereign equality of States – One state cannot assert jurisdiction over another for to do so would unduly vex the peace of nations.

Waiver of State Immunity The State may be sued, if it gives its consent. � Forms of Consent: Express • Manifested either through a general or a special law. • Act No. 3083, CA No. 327 as amended by PD No, 1445 Implied • It is given when the State itself commences litigation or when it enters into a contract.

However: the State may consent to it being sued, but the State does not thereby also consent to the execution of the judgment against it. � Waiver of immunity by the State does not mean concession of its liability. Execution of State liability will require another waiver, lacking which the decision cannot be enforced against the State.

CONCEPT OF THE CONSTITUTION

Definition [T]hat body of rules & maxims in accordance with which the powers of sovereignty are regularly exercised. (Cooley, as cited by I. Cruz, Consti. Law)

Purpose 1. 2. 3. To prescribe the permanent framework of a system of government; To assign to the several departments their respective powers & duties, & To establish certain first fixed principles on which government is founded.

Supremacy of the Constitution The Constitution is SUPREME. �No act shall be valid, however noble its intentions, if it conflicts with the Constitution. [Supremacy of the Constitution must prevail. ]

Classification Written Unwritten Evolved Enacted Rigid Flexible

Written Conventional Rigid

Essential Qualities of the Written Constitution Brief Broad Definite Constitution

Essential Parts of the Written Constitution of Government Constitution of Sovereignty Constitution of Liberty Constitution

Interpreting the Constitution 1. 2. Interpreted in such a way as to give effect to the intendment of the framers. In case of doubt, the constitution should be considered self-executing rather than non-self -executing; mandatory rather than directory; & prospective rather than retrospective.

PREAMBLE

Preambulare – Latin word, which means “to walk before” [pre: before; ambulare: to walk] It is not an essential part of the Constitution. Object & value of the Preamble: 1. 2. Sets down the origin and purpose of the Charter. It may serve as an aid in its interpretation.

FUNDAMENTAL PRINCIPLES & STATE POLICIES

Article II, 1987 Philippine Constitution This article is intended to lay down the rules underlying our system of government & as such, it must be adhered to in the conduct of public affairs & the resolution of public issues. The purpose is to emphasize and articulate unequivocally the objectives & limitations of governmental action in pursuit of the general goals announced in the Preamble.