Lesson 2: Fundamentals of the State

Quentin Skinner

He define state as "a locus of power distinct from either the ruler or the body of the body of the people."

St. Thomas Aquinas

said that state is a "set order of the rulers"

Martin Luther

said that, the state—and how the ruler, without direct intervention from the Church, should govern it with respect to his nobles and, above, all the common good of the people of his realm

Aquinas

He establishes early on that the state is a natural institution

State

a community of persons, more or less numerous, permanently occupying a definite portion of territory, independent of external control, and possessing a government to which a great body of inhabitants render habitual obedience

Nation

is a group of people bound together by certain characteristics such as common social origin, language, customs and traditions, and who believe that they are one and distinct from others

State distinguished from a Nation

• a state is a political concept while a nation is an ethnic concept.

• A state may consist of one or more nation

State distinguished from Government

• government is only the instrument through which the will of the state is expressed

• can exist without the state while the state cannot exist without a government.

• government may change, its form may change,

• state, as long as its essential elements are present, remains the same.

Police Power

Power of Eminent Domain

Power of Taxation

Enumerate the Inherent Powers of the State

Police Power

the power of promoting the public welfare by restraining and regulating the use of liberty and property (Freund). It is the Inherent and plenary power of the state which enables it to prohibit all that is hurtful to the comfort, safety and welfare of society.

Power of Eminent Domain

government’s coercive authority, upon just compensation, to forcibly acquire a property to devote it to public use

Power of Taxation

It is the power to raise revenue

People, Territory, Government, Sovereignty

Enumerate Elements of the State

People

refer to the inhabitants of the State. It must be composed of both sexes to allow continuity through reproduction. It must be adequate in number for self-sufficiency and defense

Citizenship

It refers to the membership in a political community which is permanent and more or less permanent in character

Nationality

• is membership in any class or form of political community.

• does not necessarily include the right or privilege of exercising civil or political rights.

By birth, By naturalization, By marriage

Enumerate Modes of acquiring citizenship

Jus sanguinis

(right of blood) which is the legal principle that, at birth, an individual acquires the nationality of his/her natural parent/s. The Philippines adheres to this principle.

Jus soli

(right of soil) which is the legal principle that a person's nationality at birth is determined by the place of birth (ie, the territory of a given state)

Naturalization

signifies the act of formally adopting a foreigner into the political body of a nation by clothing him or her with the privileges of a citizen.

administrative naturalization

judicial naturalization

legislative naturalization

three ways by which an alien may become a citizen by naturalization

Citizens of the Philippines (Sec. 1, Art. IV)

1. Those who are citizens of the Philippines at the time of the adoption of this Constitution

2. Those whose fathers or mothers are citizens of the Philippines

3. Those born before January 17, 1973, of Filipino mothers, who elect Philippine Citizenship upon reaching the age of majority; and

4. Those who are naturalized in the accordance with law.

Natural-born citizens

are those who are citizens from birth without having to perform any act to acquire or perfect their Philippine citizenship. Those who elect Philippine citizenship in accordance with the Constitution shall be deemed natural-born citizens

Losing citizenship

1. By naturalization in a foreign country

2. By express renunciation of citizenship

3. By subscribing to an oath of allegiance to support the constitution or laws of a foreign country upon attaining twenty-one years of age or more

4. By accepting commission in the military, naval or air service of a foreign country

5. By cancellation of the certificate of naturalization

6. By having been declared by competent authority, a deserter of the Philippine armed forces in time of war, unless subsequently, a plenary pardon or amnesty has been granted

7. In case of a woman, upon her marriage, to a foreigner if, by virtue of the laws in force in her husband’s country, she acquires his nationality.

1. by naturalization

2. by repatriation

3. by direct act of congress

enumerate the three modes by which Philippine citizenship may be reacquired by a former citizen

acquisition, reacquisition

Naturalization is a mode for both________ and ________ of Philippine citizenship

Commonwealth Act No. 473

As a mode of initially acquiring Philippine citizenship, naturalization is governed by

Commonwealth Act No. 63

naturalization as a mode for reacquiring Philippine citizenship is governed by

Repatriation

• simply consists of the taking of an oath of allegiance to the Republic of the Philippines and registering said oath in the Local Civil Registry of the place where the person concerned resides or last resided.

• not a matter of right, but it is a privilege granted by the State

recovery of the original nationality.

Repatriation results in the

Dual citizenship

as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states.

Dual allegiance

refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or more states.

Territory

• It is the portion of the earth’s surfaced permanently inhabited by the people. It is composed of terrestrial, fluvial, maritime and aerial domains.

• defined as the fixed portion on the surface of the earth on which the State settles and over which it has supreme authority.

terrestrial, fluvial, maritime, aerial domains

components of the territory of the state are the

territorial domain

refers to the land mass, which may be integrate or dismembered, or partly bound by water or consist of one whole island.

The Law of the Sea Convention

defines the rights and responsibilities of nations in their use of the world's oceans, establishing guidelines for businesses, the environment, and the management of marine natural resources

Internal waters

• covers all water and waterways on the landward side of the baseline.

• The coastal state is free to set laws, regulate use, and use any resource.

• Foreign vessels have no right of passage within internal waters

Territorial waters

• out to 12 nautical miles from the baseline

• the coastal state is free to set laws, regulate use, and use any resource.

innocent passage

• defined by the convention as passing through waters in an expeditious and continuous manner, which is not “prejudicial to the peace, good order or the security” of the coastal state.

transit passage

naval vessels are allowed to maintain postures that would be illegal in territorial waters.

Archipelagic waters

• defines how the state can draw its territorial borders.

• baseline is drawn between the outermost points of the outermost islands, subject to these points being sufficiently close to one another

• All waters inside this baseline will be

• included as part of the state's internal waters.

Contiguous zone

• beyond the 12 nautical mile limit there was a further 12 nautical miles or 24 nautical miles from the territorial sea baselines limit

• which a state could continue to enforce laws regarding activities such as smuggling or illegal immigration

Exclusive economic zones (EEZs)

• extend 200 nautical miles from the baseline.

• Within this area, the coastal nation has sole exploitation rights over all natural resources

• Foreign nations have the freedom of navigation and overflight, subject to the regulation of the coastal states.

• Foreign states may also lay submarine pipes and cables

Continental shelf

• is defined as the natural prolongation of the land territory to the continental margin’s outer edge, or 200 nautical miles from the coastal state’s baseline, whichever is greater.

• Coastal states have the right to harvest mineral and non-living material in the subsoil of it, to the exclusion of others

Archipelago doctrine

The Philippine position of on the definition of its internal waters is commonly known as the

Aerial Domains

refers to the air space above the land and waters of the State

discovery and occupation, prescription, cession, accretion, subjugation and annexation

Enumerate Modes of Acquiring Territory

Discovery and Occupation

• a state may acquire territory through this mode by discovering continent, island, or land with no inhabitants or occupied by uncivilized inhabitants, and thereafter, occupying it under its political administration.

• Discovery without subsequent occupation is not sufficient to acquire territory

Prescription

it is a mode of acquiring territory through continuous and undisputed exercise of sovereignty over it during such a period as is necessary to create under the influence of historical development the general conviction that the present condition of things is in conformity with international order.

Cession

it is the assignment, transfer, or yielding up of territory by one state or government to another

Accretion

it is a mode of acquiring territory by addition of portions of soil, either artificial

Subjugation and Annexation

mode of acquiring territory belonging to a state by

Government

is the agency or instrumentality through which the will of the State is formulated, expressed and realized

Government of the Philippines

The corporate governmental entity through which the functions of government are exercised throughout the Philippines, including, save as the contrary appears from the context, the various arms through which the political authority is made effective in the Philippines, whether pertaining to the autonomous regions, the provincial, city, municipal or barangay subdivisions or other forms of local government

form of government

refers to the set of political institutions by which a government of a state is organized

gubernare

The word government is derived from the Latin infinitive ________ meaning "to govern" or "to manage".

parliamentary systems

In ______________, the word "government" is used to refer to what in presidential systems would be the executive branch

prime minister

In parliamentary systems, the government is composed of the
________________ and the cabinet.

1. number of persons exercising sovereign power

2. extent of powers exercised by the central or national government

3. relationship between the executive and the legislative branches of the government

Enumerate the Forms of government

Monarchy, Aristocracy, Oligarchy, Democracy

Enumerate the number of persons exercising sovereign powers

Monarchy

supreme and final power is in the hands of a single person

absolute monarchy

limited monarchy

Monarchy is further classified as

absolute monarchy

the ruler rules by divine right

limited monarchy

the ruler rules in accordance with a constitution.

Aristocracy

political power is exercised by a few privileged classes. It is sometimes called government by the best, due to the fact that access to the ruling aristocratic class based not only on birth and wealth, but also upon physical, intellectual and moral qualities.

Oligarchy

a government whereby authority is vested upon few individuals or families.

Democracy

political power is exercised by a majority of the people

direct

indirect

Democracy further classified as

Centralized/Unitary, Federal government

Enumerate extent of powers exercised by the central or national government

Centralized/Unitary

a form of government where the control over national and local affairs is exercised by the central or national government

Federal government

is where the powers of the government are divided fundamentally between two organizations, each having its own definite sphere of authority, and neither having the power to interfere with or destroy the other.

Parliamentary government, Presidential government

Enumerate

relationship between the executive and the legislative branches of the government

Parliamentary government

is distinguished by the head of government being dependent on the direct or indirect support of the parliament, often expressed through a vote of confidence. there is no clear cut separation of powers between the legislative and executive branches of government. usually have a clear differentiation between the head of government and the head of state.

Presidential government

The entire executive power is vested in the President and all government action is his responsibility. provides for a Chief Executive who is elected for a definite term of office, who holds a wide public mandate as a result of his election, and who is largely independent of the legislative branch for the conduct of his administration. His formal powers are defined in a documentary constitution. Because he is both Chief of State and political leader of the government, his prestige and authority are doubly enhanced.

Totalitarian government, Authoritarian government, De Jure Government, De Facto Government

Enumerate Other forms of governments

Totalitarian government

It controls all aspects of the people’s life. It may have promised to extend certain rights to the people, but these rights exist only on paper. In reality the people have no rights under this government; they exist for the use of the state not vice versa.

Authoritarian government

is less harsh, by comparison, in governing its people than a totalitarian one. Its political power rests on some absolute authority, and it does not recognize the sovereignty of the people but at the same time allows them some civil rights limited though those may be.

De Jure government

is one that has the legal recognition of the family of nations, but it may exist alongside a rival government which is de facto.

De Facto government

has set itself up in the state; it has its own set of officials, laws, etc. but it does not have international recognition although it may want that.

Sovereignty

is the supreme, absolute and uncontrollable power by which an independent state is governed. It is the paramount control of the constitution and the frame of government and its administration.

Internal Sovereignty

External Sovereignty

Enumerate two kinds of sovereignty

Internal Sovereignty

it is the power to control and direct the internal affairs of a country such as the authority to enact, execute and apply laws. Under international law, internal sovereignty is not a factor in determining whether an entity is a state

External Sovereignty

it is the power of an independent State to control and direct its external affairs such as the authority to enter into treaties with other state, to wage war, and to receive and send diplomatic missions.

Recognition

It is an act which gives a state an international status.

Divine Right Theory, Paternalistic/Patriarchal Theory, Social Contract Theory, Necessity/ Force Theory, Instinctive Theory, Historical/ Evolution Theory, Economic Theory

Enumerate Theories of State Origin

Divine Right Theory

this asserts that a state is of divine origin, for all political authority emanates from God.

Paternalistic/Patriarchal Theory

a theory which accounts for the state as an extension of the family.

Social Contract Theory

was the dominant political creed of the 17th and 18th centuries, replacing the divine theory. This was done by a contract or compact among people whereby each one surrendered his natural liberty but gained in return the protection and civil rights guaranteed by the governments.

Jean Jacques Rousseau

Thomas Hobbes

John Locke

Contributors in Social Contract Theory

Necessity/ Force Theory

this theory provides that the state has arisen through sheer force: a man dominating a tribe through brute strength and cunning; a tribe conquering other tribes to form a kingdom; this kingdom smashing other kingdoms to transform itself into an empire; and empires and kingdoms clashing against one another for supremacy

Instinctive Theory

the proponents of this theory hold that political institutions are but the objective expressions of the instinct of men for association

Historical/ Evolution Theory

Burgess said that state is the product of history means that it is the gradual and continuous development of human society, out of a grossly imperfect beginning through crude but improving forms of manifestation, towards a perfect and universal organization of mankind.

Economic Theory

according to the advocates of this theory, the state was erected primarily to take care of man’s multifarious needs.