The concept of State in Jurisprudence

 

THE STATE

It is a political organization of  the society narrowly the institutes of government to establish order and security through method of law and enforcement. It has a territory, area of jurisdiction, populace, government, and sovereignty. The state can be socially defined as a product of the agreement of individuals on the means whereby disputes are settled in the form of laws.

History of the Concept of State

Western history believes that the concept of state was developed by ancient Greece. Plato and Aristotle took polis or city-states as an ideal form of association where a community sharing religious, cultural, political, and economic needs combined to satisfy their needs. According to Greek philosophy, a state is a notion where a population of a fixed area having a common language, culture, and history lives together. Meanwhile, Roman named the concept of state res Publica or commonwealth. They believed res publica was a legal system the jurisdiction of which extends to all the Roman citizens to secure their rights and determine their responsibilities.

The History of the concept of the state in Asia and other parts of the world has a distinct history that is unrevealed. The states of Asia and other parts of the world in the past were carrying the concept of state in a much similar notion as it is taken in the contemporary world. So, not only the western philosopher, yet there are other sources too from other parts of the world that had influenced the ancient western philosophers to their concept of the state.

However, historians believe that Machiavelli during the sixteenth century used the word state, so was done by Niccolo and Jean Bodin. Machiavelli in his novel The Prince gave importance to the durability of the government by focusing on the strength, vitality, courage, and independence of the ruler. He made the famous statement end justify the mean to validate the use of power in acquiring the state. For Bodin, power was not sufficient in itself to create a sovereign. The rule must comply with morality to be durable, and it must have continuity for instance using establishing succession. Bodin’s theory was the forerunner of the 17th-century doctrine known as the kings divine right, Monarchy became the predominant form of government in Europe. In 17th century ideas created by Locke(England), Rousseau (France) who examine the purpose and origin of law.

Hobbes defined the state as a social contract by which individuals agree not to infringe on each other’s “natural rights” to life, liberty, and property, in exchange for which each man secures his own “sphere of liberty.

Elements of the State

The first Article of the Montevideo Convention on Rights and Duties of state has given the list of the constituents of the state as follows:

·         A permanent population (there are no limits on the quantity of population)

·         A defined territory

·         Government, and

·         Capacity to enter into relations with other states (sovereignty)

Internal sovereignty: the state is independent enough to deal with its internal matters.

External sovereignty: State is not under the control of any other nation to decide the terms with other states.

Kinds of State

Generally, there are two kinds of state;

·         Independent state

·         Dependent states

                               I.            Vessel State: The state itself control few

                            II.            Protectorate State: The state forms association with other states

                         III.            Condominium

Forms of Government

Unitary form of Government: Power is accumulated in the central government.

The federal form of Government: It is for a diversified country where the power is divided between provinces and the federal government.

Confederate Government: Example European Union, it's a combo of 27 states. The states surrender some of their liberties of the central and keep their major powers to themselves.

The Origin of State

 Political philosophers have tried to figure out the emergence of the state. Various prospectives have defended their philosophies on the origin of the state. Yet, there is no absolute answer on what is the origin of the state? To answer the origin of state different theories have emerged;

1.      Theory of Divine Origin

       I.            Monarchy is a divine origin

    II.            King is accountable to God only

 III.            Nobody can revolt against King

 IV.            Inheritance in a rule is not acceptable

Criticism

·         It is unscientific, unhistorical, irrational

·         It doesn’t give revolt against  the king

2.      Social Contract theory

A social contract, which nature was social, was signed among the ruler and citizens where the citizens surrendered some of their rights to the ruler and in return, the ruler ensured some liberties towards them.

Hobbes says that when man was living the primitive societies when there was no state and law and order. Hobbes believes in the survival of the foetus. Mighty is right. To get rid of brutality, injustice, nasty and agreed on people and to control the society the people gave the power to the ruler. Hobbes doesn’t give the revolt or resistance power to the citizens. He said nobody can raise their voice against the ruler.

Locke gives an opposite view. He believes people were respecting natural rights and the concept of natural rights were existing among them.  People in primitive times were well manner. Yet, with the concept of private property disputes arose among them. An authority was required to have a neutral position to solve the disputes among the people. The power to control was given to that authority to protect the right to life, liberty, and property. However, if the authority fails to give these rights the people have the right to revolt against the people to overthrow that government and to form a new state.

Rouso was agreeing with Locke in believing. He gave the concept of the general will. That the human wants the representation. For that represents the expression of general will was made by the people to protect the rights, liberties, and property.

Criticism

We don’t have an example of such a contract It is fictitious and unhistorical. It is also illegal because when no law binds them.

3.      Force Theory

This theory states that based on the physical force the state was formed. The nation that has power got control over other nations.

Criticism

This theory supports despotism and calls it against the small foundation of the state.

4.      Patriarchal Theory

This theory gives the chain of development of humans. It states the distribution of the power from the beginning of an evolution of the state. Male has always lead in the control of society. The theory believes that the state is the extension of the family power where the man leads. Aristotle stated that the state is the natural expansion of the family. 

Criticism

Has neglected the matriarchal power and there is no connection between state and family.

5.      Matriarchal Theory

This believes that matriarchy is a fact and patriarchal is fiction. Females were leading the state and families. Mother had a more permanent role than the male. They use to have more than one husband in society.

6.      Historical and Evolutionary Theory

All the five theories were analysed before regarding ‘The Origin of the State’ as inadequate, incomplete, defective, and speculative. It was not able to give the true and correct explanation of the origin of the state. It was lacking on the ground of logic, legal, philosophical, and historical defects. It is an assumption and the emphasis is on one or two facts that are insufficient to come to a definite conclusion.

This state that state has evolved with the evolution. It is not an artificial body but an institution that was developed according to the need of the time. Different factors have worked for the development of the state.