STATE : Fact or law ?

STATE : Fact or Law ?[pic 1]

        « Criticize the State, is your right ; but do not forget that the State, is you » - German proverb.

A State is a politic organisation, built by bureaucratic institutions. It is an institution applying authority to his people that recognize him as legitimate to do so and recognized by other state. More precisely, a State is the power’s center which formulate laws and assure their respect, and it settles disagreements which can occur between human beings ; States have an absolute control over their internal affairs, but they have ability to make agreement with other states and organizations. It is difficult to date the emergence of a State, but it is the product of the civil society which have chosen to delegate to it the role of maintaining order. By amount of human beings, the civil society has been built in a community of citizens, which share the same nationality in the majority of cases.  There are four main criterions to define a State as a real State. The first criteria is the independence, or sovereignty. The State decides about its own affairs as it wishes without any other intervention. If a state has 100% control over a territory it is sovereign ans so it decides on its own competences. Sometimes States fail to exist, even if institutions still exists they don’t exercise control over their territories. The second criteria of a State is its population : without anybody, there is no State. Next criteria is the territory and borders : a State is defined according to limits, called borders, which States agreed on. The last criteria is the creation of government authorities and administration. The State is an institution, and by this aspect, two kinds of State appear : there are a State of fact and a State of law. In this assignment, we will understand what is a State of fact, and how it is replaced by a State of law.

        The term State came into play relatively late. It corresponds to the Greek koinonia politike (which can also be translated by civil society) or to the Roman res publica (the public thing), or, more clearly, to the stato used by Machiavelli to designate the city-states of Italy. In French, it appears under the Ancien Régime, but it instead refers to the situation of the person in society and, beyond that, the political and social condition of certain groups (the clergy, the nobility, the third state) : this common etymology derives from stare Latin and refers to the notion of stability, permanence. The modern understanding of the notion of the State actually appeared in the Renaissance, even though the divine foundation of the social order was the object of radical contestation. The model of the Greek city or of the Roman Empire fuels criticism against the system of medieval power marked by the influence of the Church and by the feudal sharing of sovereignty. Thus Machiavelli (1469-1527) defined the state as the sovereign central power, and detached political action from moral and religious considerations. The Reformation also contributes to breaking the bonds between spiritual and temporal power: Martin Luther (1483-1546), criticizing the logic of power of the Catholic Church, thus affirms the total separation between the kingdom of God and that of the world. Jean Bodin (1529-1596) notes for his part the existence of a public power playing the role of unifier of the social order: he conceives the State as the seat of sovereign power and, as such, he differentiates it from society. This modern definition of the established state remains the question of its legitimacy and its organization.

In the 18th century, with the philosophy of the Enlightenment, the theories of the social contract justify the existence of the State in this way: by guaranteeing the social order, the State marks the passage of the state of nature, characterized by the war of all against all, to the civil, or social state, in which each one is free by obeying the law of all. According to Hobbes and Rousseau, a « social contract » exists : the civil society chose, unanimously, to have a State. This pact is a fiction invented by philosophy to explain the politic system founded on laws instead of war. The constitution of the People in a political body, the Nation, which holds sovereignty, also changes the conception of the State by subjecting it to the democratic principle. The State and the Nation therefore appear as two closely related realities, to the point that from the 19th century the notion of nation-state is necessary, sometimes justifying the unification of certain territories, sometimes the dislocation of empires encompassing several national entities. The State is then characterized by the superimposition of a sovereign political entity with a cultural ensemble unified from the linguistic or religious point of view. The need of creating a real institution has been revealed, to control people and make law. So, the State of law, or civil State has been created, to respond to the problems which occurs before.

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