• Ms. Ankita Shetye

Concept of 'State' under Jurisprudential Law.

This article provides notes on state under jurisprudential law.It covers the summary of definition, elements, functions, theories, interrelationship with law and classification of different types of States.


What constitute a ‘State’?

There were many philosophers but we will talk about two of them who gave us the definition of state:

  • Jeremy Bentham: (also the father of analytical school): When a number of persons(whom we may styled subjects)are supposed to be in the habit of paying obedience to a person or assemblage of persons of a known and certain description(whom we may call governor and governors)are said to be in a state of political society.

  • John Salmond: He defines state with reference to its essential function as "A society of men established for the maintenance of order and justice within a determined territory, by the way of force"

In simple language or modern times a state is a community of persons more or less numerous, occupying a definite territory possessing an organized government.



Elements of State:

It has 4 basic elements namely:

  • Population:

State is a community of persons. It is a human political institution. Without a population there can be no State. Population can be more or less but it has to be there. There are States with very small populations like Switzerland, Canada and others, and there are States like China, India and others, with very large populations.


The people living in the State are the citizens of the State. They enjoy rights and freedom as citizens as well as perform several duties towards the State. When citizens of another State are living in the territory of the State, they are called aliens. All the persons, citizens as well as aliens, who are living in the territory of the State are duty bound to obey the state laws and policies. The State exercises supreme authority over them through its government.


There is no definite limit for the size of population essential for a State. However, it is recognised that the population should be neither too large nor very small. It has to be within a reasonable limit. It should be determined on the basis of the size of the territory of the State, the available resources, the standard of living expected and needs of defence, production of goods and supplies. India has a very large and fast growing population and there is every need to check population growth. It is essential for enhancing the ability of India to register a high level of sustainable development.

  • Territory:

Territory is the second essential element of the State. State is a territorial unit. Definite territory is its essential component. A State cannot exist in the air or at sea. It is essentially a territorial State. The size of the territory of a State can be big or small; nevertheless it has to be a definite, well-marked portion of territory.


States like Russia, Canada, U.S.A., India, China, Brazil and some others are large sized states whereas Nepal, Bhutan, Sri Lanka, Maldivies, Switzerland, Togo, Brundi and many others are States with small territories. The whole territory of the state is under the sovereignty or supreme power of the State. All persons, organisations, associations, institutions and places located within its territory are under the sovereign jurisdiction of the State.


Further, it must be noted that the territory of the state includes not only the land but also, rivers, lakes, canals inland seas if any, a portion of coastal sea—territorial waters or maritime belt, continental shelf, mountains, hills and all other land features along with the air space above the territory.


The territory of the state can also include some islands located in the sea. For example Anadaman & Nicobar and Daman and Diu are parts of India. State exercises sovereignty over all parts of its territory. Ships of the State are its floating parts and Aero-planes are its flying parts. Even a States can lease out its territory to another State e.g. India has given on lease the Teen Bigha corridor to Bangladesh.

  • Government:

Government is the organisation or machinery or agency or magistracy of the State which makes, implements, enforces and adjudicates the laws of the state. Government is the third essential element of the State. The state exercises its sovereign power through its government.


This sometimes creates the impression that there is no difference between the State and Government. However it must be clearly noted that government is just one element of the State. It is the agent or the working agency of the State. Sovereignty belongs to the State; the government only uses it on behalf of the State.


Each government has three organs:

  1. Legislature: Which formulates the will of State i.e. performs law-making functions;

  2. Executive: Enforces and implements the laws i.e. performs the law-application functions; and

  3. Judiciary: Which applies the laws to specific cases and settles the disputes i.e. performs adjudication functions.

Government as a whole is the instrument through which the sovereign power of the State gets used.

Sovereignty is the most exclusive element of State. State alone posses sovereignty. Without sovereignty no state can exit. Some institutions can have the first three elements (Population Territory and Government) but not sovereignty.


State has the exclusive title and prerogative to exercise supreme power over all its people and territory. In fact, Sovereignty is the basis on which the State regulates all aspects of the life of the people living in its territory. No State can really become a State without sovereignty.



Functions of State:

A state has its functions which Salmond divided into two parts i.e.

  • Primary or essential functions of the state: The primary functions of war and administration of justice are essentially the same and they help maintain their rights in society. However, there are certain differences in the two functions. The administration of justice requires the interposition of judicial decision but in the case of war, the state acts extra-judicially without awaiting any such decision. Judicial force is usually regulated by law but extra-judicial force recognises no law. It is the will of those who exercise it. There is no law in war. Martial law is merely the will of the commanding officer. Another distinction is that judicial force is commonly exercised against private persons but extra judicial force is exercised against states. However, it is possible that the state may wage war against its own subjects or against pirates or other persons who do no constitute a political society. Another difference is that the machinery of justice is usually employed against internal but force is used against external enemies. The administration of justice is usually against the persons completely im the power of the state and its force is usually latent. Extra judicial justice is not armed with such obviously overwhelming force.


  • Secondary functions of the state: As regards secondary functions, there are two main functions in this class and those are legislation and taxation. These functions are necessary for the welfare of citizens. Every state is becoming welfare state and the whole life and activities of the community have come to be regulated and governed by the state. The secondary functions of the state have increased state activity. In communist countries, the whole of the economic structure is a branch of public administration.



Theories of State origin:

There are 7 theories of state's origin:

  • The divine theory:

The oldest theory about the origin of the state is the divine origin theory.Its is also known as the theory of divine right of kings. The exponents of this theory believe that the state did not come into existence by any effort of man.It is created by God. The king who rules over the state is an agent of God on earth. The king derives his authority from God and for all his actions he is responsible to God alone. obedience to the king is ordained to God and violation of it will be a sin.The king is above law and no subject has any right to question his authority or his action.The king is responsible of God alone.


The conception of the divine creation of the state may be traced back to remote antiquity. It was universal belief with the ancient people that the king is the representative of God on earth and the state is a bliss of God. Thus the king had both political and religious entity. In the religious books also the state is said to be created by God. In some religions this conception is explicit, but in others it is implicit.


Thus theory prevailed in the old age when religion and politics were combined in the person of the King. In ancient India the kings ruled over the people accidents to the injunction of the dharma, which stood for both religion and politics.


In the medieval period the Christians held the pope in semi-God status.In the Muslim world the Caliph was the priest - king. The Dalai Lama was the head of the Theocratic state of Tibet. He was considered there as the incarnation of the Buddhist god Avalokitesvara.

Both the church and the state in their mutual rivalry used the theory of the divine origin in the medieval age. The church asserted the supremacy of the church over the state. On the other hand, the state because of its divine nature emphasised on its supremacy over the church.


Be that as it may, during a large part of human history the state was viewed as direct divine creation and theocratic in nature. The theory was in currency so long as religion was considered to be chief motive force of all human activities.


In the twentieth century this, theory came under criticism being an incorrect explanation of the origin of the state. With the growth of scientific outlook this theory faded into oblivion. Today's trend is that the state is a historical growth.

When a more acceptable theory like the social contract theory came out, the divine theory was dashed to the ground. The new theory suggested that the state is a handiwork of men, not a grace of God.


The reformation that separated the church from the state debased the coin of the divine theory. The Post-reformation period is a period of non- religious politics. Thus the secular outlook made the divine theory totally unacceptable.

The emergence of the democracy was a bog blow for the autocratic dogma of mixing religion with politics and thereby it blunted the edge of identifying God with the king. Democracy not only glorified the individual but shattered the divine halo around the origin of the state.

The growth of scientific enquiry and materialistic view of the political mechanism. The result was that the erstwhile blind faith and superstition was no longer acceptable. The people began to accept only those things that stood the test of logic and reasoning.

  • The force theory:

Another early theory of the origin of the state is the theory of force. The exponents of this theory hold that wars and aggressions by some powerful tribe were the principal factors in the creation of the state. They rely on the oft-quoted saying "war begit the king" as the historical explanation of the origin of the state.


The force or might prevailed over the right in the primitive society. A man physically stronger established his authority over the less strong persons. The strongest person in a tribe is, therefore, made the chief or leader of that tribe. After establishing the state by subjugating the other people in that place the chief used his authority in maintaining law and order and defending the state from the aggression from outside. Thus force was responsible not only for the origin of the state but for development of the state also.


History supports the force theory as the origin of the state. Thus theory is based on the well-accepted maxim of survival of the fittest. There is always a natural struggle for existence by fighting all adversaries among the animal world. This analogy may be stretched to cover the human beings. By emphasising the spiritual aspect of the church the clergyman condemned the authority of the state as one of brute force. This indirectly lends credence to the theory of force as the original factor in the creation of the state.


The socialists also, by condemning the coercive power of the state as one bent upon curbing and exploiting the workers, admit of force as the basis of the state. The theory of force is supported by the German philosophers, the maintain that war and force are the deciding factors in the creation of the state.

  • The social-contract theory:

The most famous theory with regard to the origin of the state is the social contract theory. The theory goes to tell that the stale came into existence out of a contract between the people and the sovereign at some point of time.


According to this theory, there were two divisions in human history - one period is prior to the establishment of the state called the "state of nature" and the other period is one subsequent to the foundation of the state called the "civil society". The state of nature was bereft of society, government and political authority. There was no law to regulate the relations of the people in the state of nature.


The crux of the social contract theory is that men create government for the purpose of securing their pre-existing natural rights - that the rights com first, that the government is created to protect these rights. These ideas were based on the concepts of a state of nature, natural law and natural rights.


According to the social contract theory the state was the creation of the people living in a state of nature which was a lawless and order-less system. The slate if nature was controlled by unwritten laws prescribed not by men but by nature. The exponents of the theory gave conflicting views about the nature of the state of nature. Some considered it gloomy, while others painted it as bright like paradise.

For some reasons the people did not like the system and terminated it by an agreement to save one man from the rapacity of the other. The nature made laws were replaced by man made laws. The originally independent people subordinated themselves to the will of either the whole community or a particular person or a group of persons.


Thomas Hobbes theory of the social contract: Thomas Hobbes in his book Leviathan delineates very precisely and straight­forwardly the creation of the state by an agreement. To begin with, before the state was created, there was a state of nature in which a war was raging. There was no law or justice. Human life was marked by force and deceit. Might was right in that situation. Hobbes gave a gloomy picture of the state of nature in his oft-quoted words “Solitary, poor-nasty, brutish, short”.


The people became fed up with the state of nature. In order to get rid of the unbearable condition they entered into an agreement by which they established a government or authority to which they surrendered all their rights. The surrender was unconditional and irrevocable. The authority was a single person or a group of persons endowed with unlimited power. The authority to rule was the result of the contract.

Since he was not a party to the contract, he was not bound by the terms of the agreement. The people had no right to depose the ruler or to agitate against the ruler. If the people revolted against the authority they would be guilty of violation of the contract and would face the consequence of going back to die state of nature. This theory of Hobbes supported the despotism of the Stuarts in England.


In Hobbes’ view there was one single contract in the creation of the state and the establishment of the government. From that it would follow that if the state was gone, with it would go the government. It is apparent that Hobbes was supporting legal sovereignty and had no quarter for political sovereignty. Disgusted with the useless dispute between the monarchy and parliament in England, he supported despotism, keeping chaos as its only alternative. So he gave all powers to the sovereign.


Thomas Hobbes called his state Leviathan which came into existence when its individual members renounced their power to exercise the laws of nature which was one of “each for himself” and at the same time promised to turn these powers over to the sovereign who was created as a result of his promise and also to obey thenceforth the laws made by this sovereign.


John Locke's theory of social contract: In his book Treatise on Civil Government John Locke, justifying the limited monarchy of English type, drew his own state of nature. He did not agree that the state of nature was a gloomy and dismal one as painted by Thomas Hobbes. In contrast, Locke’s state of nature was one of peace, reason and goodwill. Yet this semi-paradise could not satisfy the people because they were pining for law and impartial authority.


So they abandoned the state of nature though for a different reason. So in replacing the state of nature the people created the civil society by a contract. That done, they made another contract by which the government in the person of the King was set up. Here the ruler was a party to the contract. The people would obey him so long he would protect their life and property. So in Locke’s theory there were two contracts, one for the creation of the civil society and the other for establishment of the government.


The people’s surrender of rights was partial and conditional. If the people would violate the contract, the people would be entitled to depose the worthless King. Thus Locke supported the Glorious Revolution of 1688. His sovereign was political rather than legal as propounded by Hobbes. He was clear in distinguishing the government from the state, which Hobbes failed to do. While Hobbes destroyed individual liberty, Locke destroyed the authority of the state.


When Hobbes took brief for royal absolutism, England was getting disgusted with the meaningless fights between the King and the parliament during the Stuart period. Locke’s timing was related to the period when the King was maintaining a low profile and the parliament was in the ascendance. This would culminate in the Glorious Revolution of 1688.


John Locke’s view was that the individuals promised to accept the judgements of a common judge (i.e., the legislature) when they agreed to the accord, which established civil society. According to Locke, another set of promises was made between the members of the civil society on the one hand and the government on the other.


The government, in its turn, promised to execute its trust faithfully. It was agreed that in case the government broke the terms of the pact or in other words if it violated the constitution, the people would have the right to rebel.


Rousseau's theory of social contract: Jean-Jacques Rousseau struck a middle course between the two English counterparts. his theory reconciles the authority of the state and liberty of the individual. His state of nature had an overflow of idyllic felicity.

There human lives were free, healthy, honest and happy. But there was debasement and degradation with the increase of population and with the progress of civilization particularly with the emergence of private property in land which destroyed the natural equality among men.

To get out of this menacing position, men entered into an agreement with the pledges- “Each of us puts his own person and all his powers in common under the supreme direction of the General Will, and in our corporate capacity, we receive each member as an indivisible part of the whole.” Unlike Hobbes and Locke, the authority created was not given to the ruler, but was retained by the whole community.

As a matter of fact, the whole community expressed the General Will in a public meeting. Subsequently, the government was created by a legislative measure. The people delegated power to the government.


  • Marxician theory of origin of the state:

The Marxists are of the view that the state is a creation by the class-struggle with the help of force. So it is altogether a different theory of origin of state with the recognition of force which we have studied as a theory of origin of state.


The Marxists began with the primitive society where there was no surplus wealth to quarrel with and so there was no state. With the passing of time, society was getting split over hostile classes with conflicting interests. This class antagonism was the root cause of the state. When agriculture was learnt as an art of culture there was ample food which resulted in private property. The insoluble contra-dictions as a result of division of labour became so acute that it was not possible for any class to keep reconciled in the state or to keep the quarrelling classes under control. The most dominant class that controlled the mode of production came to establish the state to ensure its dominance over the other classes who did not own the modes of production. The state thus became an instrument of domination and oppression of one class over the other classes.



Thus the state came in to ensure the right of the dominant class to exploit the other classes. As the dominant classes kept on changing hands so also changed the character of the state. So V. G. Afanasyev in his book Marxist Philosophy maintained that the state was not imposed from outside, but it was a product of society’s internal development at a certain stage of development. With the break-up of the social order ensued class-conflict which the society became powerless to dispel.


Emphasising the economic factor as the key element in the class struggle, Fredrich Engels observed- “But in order that these antagonisms, classes with conflicting economic interests, might not consume themselves and society in sterile struggle, a power seemingly standing above society became necessary for the purpose of moderating the conflict, of keeping it within the bounds of ‘order’ and this power, arisen out of society, but placing itself above it and increasingly alienating itself from it is the state”.


Interrelationship between State and Law:

The relation between the state and law is very close and intimate. The state manifests or expresses itself through law and law has its importance or sanctity because it has the sanction of the state. There are three theories with regard to the relationship between state and law.


  1. The first theory is that the state bis superior to law and creator of law. Salmond writes: "It is in and through the state alone that law exists." Austin defines law as a command of the sovereign. Only the sovereign has the power to make law and he himself is not bound by it. The subject cannot have any right against the sovereign. Rules which have not been made by the state are not law. International law is not law. Its is merely "positive morality."There was a reaction against this theory. It was contended that law is anterior to the state and is not always made by the state. There was further reaction when the Nazis and Fascists came to power in Germany and Italy. What they advocated was that law is the will of the leader of the nation. Law is merely an instrument for the prosecution and fulfilment of state policy and is not a check on it. Certain rights have been guaranteed to citizens in democratic countries and those are considered to be binding on the state. However, those rights can be amended, curtailed or modified by the state. The prevalent view is that the state is not only the maker of law but also superior to it.

  2. Another theory is that the law is more important than the state and the state is bound by it. Law is anterior to the state. Laski writes: "The rule of law is clearly independent of the state and is indeed anterior to it." Miller observes: "Law, like language, springs from the society itself and one of its first works is the creation of the state-the greatest of corporation- for enforcement of rights and duties in accordance with law.The state makes laws but does not create chemical reactions." According to Krabbe, the source of law is the subjective sense of the right in the community. The sovereign is not the source of law. It is the community that expresses itself through the organs of the government. Jellinek says that although the state creates law, it is bound by it. It submits to law voluntarily, Jellinek describes it as the theory of auto-limitation.

  3. The third theory is that the state and law are one and the same thing. They merely indicate legal order. Kelsen is one of the advocates of this view. According to him, the terms state and law are the same thing. These two term are used because we look from two different angles. When we think in terms of rules, we call it state. When we think in terms of the institution created by those rules, we call it state. There is no difference between law and state. Kelsen's view has been criticised on a number of grounds. Miller observes:"The identification of law with the state is like the identification of church and state or religion and the state."

The different theories about the relationship of law and state have their own merits. The state bound by some fundamental law is not an impossibility. It is possible that in future, Law may be considered more fundamental that the state.



Classification of state:

A unitary state is different from a federal state

Unitary state is composed of one central government that holds all the power, while a federal state divides power between national and local forms of government.


The Unitary governing state:

• Places its power in one central governing state.

• Very little political power exists outside the central government.

• The powers of this governing state are uniformly applied throughout.

• All major government decisions are made by the central government.

• If smaller government units are established they are controlled by the central government and can be abolished by such without their consent.

• Many unitary governments are either dictatorships or totalitarian.

• France, although Democratic, is governed by a Unitarian body.

• Kuwait, Saudi Arabia, Barbados, Morocco, and Spain are examples of unitary monarchy government

• China, Afghanistan, Italy, Zambia, and the. Ukraine are examples of unitary republic government.



The Federal Governing State:

• Distributes power from the national government to local/state governments to adopt laws that are reasonable to the country as a whole and the localities.

• Power may be diffused in the federal state.

• Multi-national states often have a federal system.

• Larger countries often adopt the federal system since constituents may live in areas remote to the location of the central government.


• Ethnicities with in a country may lead to a federal system as their rules and laws may vary. An example of this is the small country of Belgium which balances the needs two distinct ethnic groups.

• The United States has a federal governing system with a national government and Constitution, in conjunction with states governments and constitutions.


Conclusion

A state continuously pursues the objective of national- integration. The State tries to secure this objective by securing a willing blending of the majority nationality and all the minority nationalities, through collective living, sharing of all the ups and the downs in common and development of strong emotional, spiritual and psychological bonds. Unity in diversity or more really, unity in plurality stands accepted as the guiding principle by all the modern civilised multinational states like India, USA, Russia, China, Britain and others.

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