Curs 3

Săptămâna 9.03.2020 – 15.03.2020;

The state as a higher form of socio-

political organization

1. Theories that led to the grounding of the politico-legal state concept

a. The characteristic elements of the state
The most important and effective institution in the exercise of political power has been
and remains the state. This is also the first structured, organized and institutionalized political
institution of detention, exercise and legitimacy of political power. This made the state to be
identified often with the political power, and the latter defined by the state, as a state power.
In the first case and in the other we are dealing not only with an overlap of terms but also with
a lack of rigor, an identification of contents and meanings.
The state is not confined to power. By political power, we will have to understand not
only the one held and exercised by the group or social class in power, since the notion of
power involves also social forces which give political opposition.
The activity and action of the state is more comprehensive than the political power,
having as a space of action also other forms of social power, such as the economic, social,
spiritual one, etc.
In this sense, we can say that "if the term power, without any other determinative, often
designates the State, is because the latter is not only power par excellence, but is also the
source of power that can be exercised over other persons".1
The importance and essentiality of the State is the key to any society. Therefore, since
antiquity, the importance and its role have been subject to intense and ongoing concerns of
analysts, philosophers or other social groups interested in deciphering the elements of social
life and the study of politics.
Since its earliest manifestations, the state was seen in a double situation, both as a
territory that designated and identified a social community, and as a supreme institution of the
society.
The ancient Greeks defined the state with the notion of polis city-state, as a settlement
delimited from another, but also as an institution of social management exercise.
In turn, the Romans, to make a greater distinction between the state as a territory,
alignment and the state as an institution, used two different terms: of civics-state in the sense
of territory and res-publica - as a political institution, the latter being much closer to its actual
meaning.
1
Charles Debbasch, Jean Marie Portier, Introduction à la politique, 3-ème édition, Dalloy, Paris, 1991, p. 25.

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 Also the ancient Germans saw the state as a territorial organization and a political one,
defining it with the notion of land.
For the first time the notion of State, as a concept, is found in the writings of Niccolò
Machiavelli, in the work Prince (1513), when referring to the idea of unity.
Since the eighteenth century the term state, in the sense of power and political
institution with a major role in the organization and management of the society, is gradually
establishing itself in modern languages. After this time, the notion of state will be used as a
political institution, or human community under one authority, sense that today has retained
its validity. A much disputed issue that has not found any full resolution today is that of
defining the genesis of the state. The diversity of views and opinions was and is determined
by several factors such as:
 the historic moment and the period when the state was analyzed;
 the development level of social sciences;
 the social, economic and political interests that were primary in the study of the state;
 criteria viwed and that were of most interest in the state research;
 fields of science from the perspective of which the state has been defined and
investigated.

b. The main theories which were at the basis of the concept of state
Over time, the problem of defining the origin and content of state generated several
theories2.
 
The theocratic theory
These are of the ancient and feudal societies. According to them, the state is a divine
creation, the result of the will of God, acceptance and submission to it being a religious
obligation.
In feudalism, there occurs a cohabitation between the secular power and the church,
which had the effect of printing a poignant divine nature both to the power and to its political
institutions, which determined a supernatural justification and legitimization of them.
At the same time the church, through its theological dogma has contributed greatly to
the foundation based on a divine basis of the doctrine of absolute monarchy. According to it,
the monarch is God's representative on earth, he receives and exercises the power from God,
and for his deeds and acts he is accountable only to the divinity.
The most important representatives of the theocracy theory were Aurelian Augustin with
the work De civitate Dei and Toma D'Aquino with Suma Teologica. Aurelian Augustin is the first
theologian of the Christian church that raises the problem of the relation of the earthly state and
the rule of God, opening the struggle for hegemony between the church and the secular power.
In turn, the monk Toma d'Aquino will create the middle of the XIII century, as Pope
Leo XIII also said, the single most authentic philosophy of the Catholic Church, which was a
mix between faith and reason, which numerous references from the Holy Scripture.

2
Thomas Fleiner Gerster, Théorie générale de l'Etat, Presse Universitaire de France, Paris, 1986, p. 151.

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 In the same theory also fits the concept of Plato whom in Republic provides a
theoretical construction of the state based on divine principles, but with many elements of
political elitism and utopia. The state, after Plato, is an aristocratic type of organization based
on groups, where the elite philosophers and sages ensure the leadership.

Patriarchal theory
This theory is very close to the theocratic one. It argues that the state would have arisen
directly from the family and the power of the monarch from the parental power of God.
Elements of such a theory encountered at Aristotle, we find also in some contemporaries
political scientists such as Robert Filmer, who in his work Patriarch (1953) believes that the
monarch, as the heir of Adam, is created by God, and consequently holds the power from it,
so by default it would have a divine character, nature.

Natural law
Natural law is an old social theory, that appeared since antiquity, being supported and
promoted by thinkers like Mo-tzi, Men-tzi, Greek Stoic School, Epicurus etc.
About an unwritten natural law we learn also from Sophocles and Cicero, the latter in
the writing De republica distinguished between natural and legal law.
In feudalism, natural law was replaced with the divine, the whole explanation and
regulation of social relations will be made through divinity. During the decay of feudalism
and the transition to capitalism, the natural law will get back its secular, rational nature and
will become an ideological weapon in the struggle of the bourgeoisie against feudalism.
Natural law expresses the position, the attitude of the new class in the rise of the
bourgeoisie, to the problem of organizing and takeover of the political power.
For the purpose of natural law, the state is not an institution of divine, eternal and
immutable essence, but a human creation, subject to continuous changes, transformations.

The contractual theory of the state

It is closely related to the natural law, which otherwise is the basis, the foundation of
this theory. It marks a step forward in the evolution of state theories, meaning that it removed
the old theocratic hypothesis according to which the would be a divine creation and will.
Although the origins of the contractual theory are coming from antiquity. This theory was
founded and developed in the Enlightenment period of time, especially by the main protagonist
Montesquieu and especially J. J. Rousseau. The latter, in a paper titled significantly Social
contract, believes that the state emerged from a natural need, according to an agreement between
the power and citizens, when the latter have delegated their attributions to the power in order to
use them on behalf of the community, of common good.
Even the political and ideological representatives of the new class - the bourgeoisie –
was in an open struggle for power with the old class and absolute monarchy, these go further.
They have arguing that if one of the parties, as was the case at the time of the feudal power, is
not respecting its obligations under the contract, it may be canceled, which in the political
practice meant replacing the power. In this way there were justified the bourgeois revolutions

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which sought for the abolition of the old powers and the old state of feudal essence.

The organicist theory

It appeared as a spiritual riposte, as an ideological counter-revolution of the old feudal
classes and the church against the bourgeoisie, the revolution and its liberal doctrine.
It is a variant of the political conservatism from the period and it presents and acts as an
antibourgeois ideology.
The organicist theory is a mechanistic analogy between the human and social body. The
state is synonymous with the human body and consists of several parts, which have an
unbreakable bond. It has a head to lead, to direct the work, which is synonymous with the
feudal aristocracy, a stomach to consume, meaning the same aristocracy and not members to
produce: peasants, workers and traders. In other words, the state is a living organism with
manifestations in social life and which, as the individual, has periods of growth, peak, decline
and death.
This theory has sought to justify, to legitimize the existence of the feudal state, the
social inequality within it, to highlight the predestination of the role and status of social
classes and categories.

The theory of violence

It tried to explain the emergence of the state as a mere natural necessity of the people to
end violence in the society, to decide the order between people, classes and social groups.
Thomas Hobbes believed that the state does not come from a human inclination towards
social life, but instead from the need to calm his natural aggressiveness.

Psychological theory
According to this theory, the state is the result of biological, psychological factors, such
as: will, desire to live together, the existence of the same habits, the psychological nature,
elements that brought together the state.

Juridical theory
In view of juridical theory, the state arose from the need of regulation by normative acts
of legal essence of relations, relations between people, groups and social classes, the stature of
their role and place in the society.
The founder of this movement, Hans Kelsen, saw the emergence of the state as the total
personification of law or personification of the legal order3.
The modern and contemporary political doctrine paradigms are those analyzing the state
power from the political perspective. They focus on the place and role of the state in the society,
the attributes and powers of its institutions.
Classical political doctrines - liberalism and conservatism - give the state a minimal
role, to create the social, economic, political and legal framework for the good functioning of
society. In turn, neo-conservatism and, especially, neoliberalism will make the transition to

Hans Kelsen, Théorie pour de droit, Dalloz, Paris, 1962, p. 378.

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the state with maximal role, integrating into the society. It is the essence, the engine of
modern society development.
Other democratic doctrines, such as the Christian-democratic, but mostly, social
democratic, attempt to make the state an element of balance, of mediation of the society, of
achievement of peace and social protection.
An entirely different status confer the undemocratic paradigms to the state entities,
especially the fascist and communist doctrine. They made the state the primary means for
achieving and imposing their dictatorial and totalitarian policy.
Of course, all these theories, taken individually, contain to a certain extent - some more,
some less or not at all - certain truths. Instead, all have the same common denominator: they
are partisan, promote the interests and aspirations of those who have created them and put
them into circulation.

2. The concept of statehood

a. Distinctive features
The form of state is a political and legal concept, which expresses the way of
establishment, management and exercise of state power.
In contemporary doctrine, in the opinion of one author, it is shown that the state form
expresses the organization of the content of power, internal and external structure of this
content.4
In addition, it was argued that the state is an "institution of institutions" established in
an articulated single and organic whole.5
The concept of form of state is common used in constitutional law to define how to
organize the state power established in a particular territory.
The shape and structure of state power should not be wrong understood as the state
itself. The state has as main elements the territory, population and state power, as well as the
state power exerted according to the Constitution through a structure of public authorities and
institutions that are a politico-legal component of the state.
Public authorities and institutions are those human groups constituted under the law and
for their implementation, endowed with material and financial resources also under the law,
vested with legal personality and skills to initiate and issue normative acts, laws.
The form of state power is different from state to state according to three major criteria:
state structure, form of government and political regime.
State structure - indicates the form of public authorities and institutions, the limits of
their territorial and material jurisdiction, as well as the delimitation of their competences,
respectively the specific links between the whole and the part.
Form of government - designates the formation and organization of state structures,
authorities and institutions, characteristics and principles that underpin institutional relations,
especially between the legislature and the executive bodies, including the head of state.
4
Nicolae Popa, Teoria generală a dreptului, Ed. Actami, Bucureşti, 1996, p. 109.
5
Ion Deleanu, Drept constituţional şi instituţii politice, Tratat. Vol. I, Ed. Europa Nova, Bucureşti, 1996, p. 131.

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 Political regime - expresses the relationship between the political power and state
power and the relationship between them and the individual, and the means and methods of
exerting power, of consecration and guarantee of citizens' fundamental rights and freedoms.
Based on these criteria, state power can be of a unitary state or of a federal state, of a
monarchy or a republic, of a democratic or authoritarian state.
General speaking, the state is considered by most analysts as that form of organization,
institution exercising the political power within a given territory by a group of organized
people that are imposing their will and interests upon the society.
Historically, the moment of state appearance differs from one society to another, but as
a historical process, it occurs during the transition from tribal society to the slavery one.
The process of state appearance was an objective one, determined by the following
factors:
• the overall development of society in the social, organizational, economic and political
plan;
• in organizational terms, the transition from tribes to the union of tribes and their
tendency to form peoples resulted in a higher political framework - the state;
• the transition to sedentary imposed the existence and defence of a territory and in close
contact with them, the existence of adequate political institutions, forming the state;
• the emergence of private property, social division of labour and the surplus of product
has, also, prompted the emergence of autonomous political institutions to govern relations
between the producers and the members of the society.
All these changes and transformations that the society met imposed the occurrence of an
organism and specialized institutions, which have found expression in the state, and some
people who were entrusted with certain management, defence and social leadership functions.
As stated by L. Dauguit, the state is simply the product of natural differences, sometimes too
simple, sometimes too complex between people, some of them belonging to the same social
group, resulting in what is called political power.6
The emergence and evolution of the state was a law of social development. It answered
and was imposed by social needs, and the state was the only able to satisfy it.

State functions
1. State - higher form of social organization
The emergence of state was determined by certain socio-economic causes. The same
that triggered the emergence of law.
The Word state comes from the Latin status, meaning the idea of something stable. In
the modern sense, the notion of state is used much later, starting with the sixteenth century.
Being an extremely complex category, the concept of state is used in several ways.
In the broadest sense of the word, the state is the main organizer of the activity of a
human community that establishes general and mandatory rules of conduct, organizes the

6
L. D’Auguit, Traité de droit constitutionnel, vol. I, Paris, pp. VII-VII.

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application or enforcement of these rules and, if necessary, resolves the disputes arising in the
society. Narrowly and specifically, the state represents all the public authorities which provide
government. The concept of state is spotted or expressed from different perspectives that meet
general characteristic elements of all states, regardless of the period of their existence.
M. Bluntschli claims that the state is an organized personality of the nation in a
determined country.
Schulze considers that the state is the unification of a people under a higher power in
order to achieve all the common goals of national life.
Constantin Desescu described the state as a unit composed of the reunion of several
people, in a given territory, as the governors and the governed.
The state is an organizational system that realizes the sovereign leadership of a state (of
a people established in a particular territory), holding for this purpose the monopoly of
creation and the monopoly of law enforcement.
The state is characterized by several elements or historical and political dimensions,
qualitatively gathered. They shall be assigned the territory, population (nation), public or
executive authority (power) and sovereignty.
The state dimensions have a major importance. They condition the appearance and the
disappearance or state revival.
These attributes play an important role in the structure of the state, because we will not
be able to talk about a contemporary state of law if its structure will be missing one of the
components mentioned above. So we can say that a problem of the state of law is the
achievement of life and the good existence of data attributes. Achieving these attributes is
largely a responsibility of both the state bodies and the people in whose hands there is the
power to choose their fate.
The state evolves in response to the specific social values of the society. At all stages of
historical development, the state is called to defend that disposition. In the contemporary
period, especially after the Second World War, in democratic countries there is considerably
increasing the economic and social side of state activity. The place of the guard state, Bobby
state is increasingly taken over by the so-called state of providence, welfare state, state
concerned with ensuring the standard of life of the population, with stopping abuses and
excesses.
Thus, it is considered that the purpose of the state is to defend the inalienable human
rights of defence interest – general, happiness of the society, of its people.
The problem is that it is required that the purpose of the state includes the concerns of
making good laws and to respect the principle non-intervention in private affairs. The state of
law must be placed above the existing groups within it and work towards resolving conflicts
between them.

2. Internal functions of the state

The state is the one who must provide, in order to accomplish the general interest, the
repeated conduct of the same type of activity, but in terms of superior efficiency, with

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specialized bodies and based on clear and well established rules.
The functions of the state are those directions of action of the institutional system,
determined by the operational requirements of the society and established with the purpose of
achieving these objectives.
These activities are grouped and conducted in what is called state functions and are
studied both in material terms and in terms of form.
The material criterion refers to the content and nature of the activity that is actually
the state function substance. Activities, grouped as they are related, which take place in a state
function are represented by specific rights and obligations, which require a proper
qualification, which in turn requires organization, efficiency, special procedure of regulation
and investigative bodies for execution.
Thus, legislative work, which aims to regulate social relations based on the will of the
people, requires a specific content and nature, namely the specific activity of drafting the law
according to the regulations of the legislature. Another purpose, another content and another
nature regards the enforcement and organization of the execution, being made by other
bodies, namely the public administration ones.
The material criterion being that concerned with the content, it should not be confused
with the legal character that refers to the form, all state activity being of legal nature.
The formal criterion is the one that refers to the specificity of institutions carrying out
the state activity and to the form of documents issued by these institutions. Thus, this criterion
reflects the form of the body that operates the state activity and the form this state activity
needs to take.
According to this criterion, the authority developing the law should be the most
representative for the people, its members must be elected by the people, the authority must
operate by the rules established, so that the laws issued express the will of the people.
For the will of the people to become generally binding, it must be expressed in some
forms, based on specific procedures of the law, which is a most general rule, mandatory for
all, guaranteed and ensured through the coercive force of the state.
But in order to know the will of the people, its manifestation and institutionalization,
there are needed some sort of specific activities that concern the institutionalization of the
Parliament as a legislative body and its legislative work, ensuring that the legislative process is a
function of the state.
Yet, the mere existence of laws without organizing this process does not ensure the
achievement of the general and individual interest according to the state mission. In this
regard, there are required specialized bodies and specific activities well regulated in order to
organize the execution and enforcement of the law.
These bodies are administrative authorities, the activity done by them being called
administrative activity, which is the administrative function of the state.
Thus, by state function we understand a set of rights and obligations, powers established
based on a goal, means and a common nature, established by the law and carried out by a
special state authority and specialized according to an appropriate competence.
Referring to the classification of functions, some authors have established that the state

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would have three functions, namely: the legislative function, executive or administrative
function and judicial functions. Other authors separate the executive function into two
functions and say that, actually, the state has four functions: legislative function, executive or
governmental function, administrative function and judicial function. They reasoned the
division of the executive function into two positions by modernizing and technicization of the
purely administrative function which justifies its mention as a function itself. Thus, the
administrative function would be of the government and the executive one would be of the
head of state or of the prime minister, in some situations.

3. External functions of the state

The external functions are considering, generally, the work of the state in its relations
with other states. Given the contemporary democratic state, we can speak of two directions of
external functions. First, the development of relations with other states, bilateral relations of
the state that it has, firstly, with the neighbours and then with other states. These relations
must be based on equality, mutual respect, respect for sovereignty, national independence,
non-interference in internal affairs, cooperation and collaboration, on mutual interest and
mutual benefit. In these conditions, bilateral relations take place normally.
Another aspect of the external function is the state's participation in international bodies,
in organizations of an international character in order to solve their own national problems,
and for solving general, global problems of humanity. Such general, global issues are: peace,
disarmament, security of peoples, international cooperation, environmental worldwide
issues.
All these problems of the state must be seen within its role to contribute to the
achievement of the fundamental aim which the state has, to promote rights and interests, the
dignity of citizens in the society, constituting a whole for the formation and maintenance in
good condition of a contemporary state of law.

Political conditions of state existence. State power

The territory and population are the main elements which condition the existence of the
state. But the mere fact that they coexist does not create yet the state, not always the reunion
of these two elements creates a state, but they can exist also based on other political and
territorial groups, such as municipalities, cities, counties.
An essential condition that is more than a simple external condition and generates the
state is the appearance in the bosom of a human community placed in a particular territory or
of a government headed by an absolute monarch or a limited group of people, as was, for
example, the case of the Senate during the Roman Republic, or a system of organs that, in all
these cases, is given the ability to take, by manifestations of unilateral will and without any
subordination to any higher concurrent authority, compulsory measures likely to be imposed

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with general respect with the help of coercive force that was set up for this purpose.
One of the main political conditions of existence of the state is the existence in the state
of state power or public authority. It is not possible a unitary definition of what is called state
power or public authority for different periods of social development.
In this regard, it is enough to say that while in absolute monarchies the state power is
confused with only one person ("The state is me" said the King of France, Louis XIV), in modern
democracies it appears as a system of organs, competent to perform the functions of the state:
legislative, executive or judicial.
State sovereignty is another prerequisite for the existence of modern state. We
understand it in two ways:
1. Internal sovereignty, i.e. acquiring state power in order to impose its commands to all
individuals and human groups from its territory without being bounded regarding its freedom
of action by a higher or concurrent authority.
2. External sovereignty, i.e. acquiring public authority in order to represent the state in
its relations of international law on equal conditions and without any outside interference,
appropriation manifested particularly in the right to conclude international treaties and
conventions, to send and receive diplomatic representatives.

State form
The state form is a complex category that determines the organization, content of power
and internal structure of this power. State form is characterized by three elements: form of
government, state structure and political regime.

a. Structure of the state

State structure is characterized by the organization of power in the territory. According
to state structure, we can determine two types of states: simple or unitary states and composed
or federal states.
The simple or unitary state is characterized in that it is unitary and is not in a union with
other states and retains its own sovereignty and its organization, participates as a fully
sovereign state. Such countries have a single parliament, executive body and a single row of
judicial organs.
The federal state is composed of two or more state entities. The federative state is a
union of states in which there are two rows of central state bodies: federal authorities and
authorities of the federation subjects. Two citizens, the federal and the one of the subjects of
the federation. Dividing the state is not only done in administrative territorial units but also in
political, autonomous parties, units, state entities.
Except for the federal states, there are historically known various associations and
unions of states:
The personal union is a union of two or more states that, keeping the individual
sovereignty of each, have a common head of state. This state form disappears with the
disappearance of the one which prompted the union. An example is the reign of Carol Quint,
which brought together the crowns of several territories.

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 The real union is an association of states much stronger than the personal one. Within it
there are several common organs than the president. This union does not disappear with the
person who leads it, the institutions remaining on the same formula.
The confederation is an association of independent states made up of economic and
political reasons, both internal and external, which does not create a new state, as a subject of
international law. Confederation states are pursuing common goals and for solving them they
elect a joint body. The states retain their independence and have representatives in the
confederation collegial body intended to lead the activity of the confederation.

b. Form of government
The form of government is paramount for the feature of the state.
In terms of the form of government, most commonly encountered are the monarchy and
the republic.
Monarchy, as a form of government, is characterized in that the head of state is the
monarch who usually held the power for his entire life and hereditary transmitted it, or is
designated under special procedures based on the concerned traditions.
As a form of government, monarchy is known from ancient times. In its evolution, the
monarchy knows many forms: absolute monarchy, limited monarchy, dualistic parliamentary
monarchy, contemporary parliamentary monarchy.

Monarchical states
During the same period with the colonial expansion, monarchical states were
consolidated and have developed both qualitatively and quantitatively.
Monarchy is one of the embodiments of public power or form of government, wherein
the supreme authority is represented by one particular person named monarch, king, emperor
etc. and that holds this position in the state permanently, throughout his life.
The origin of the word monarchy comes from the Greek (monos - one and arkhein – to
command), which means government by only one person.
Depending on how a person becomes monarch and on his exercise of public power,
monarchies can be differentiated:
a) Hereditary monarchies characterized by the fact that the order to the throne is
ensured by the rule of the firstborn, male, in the royal family.
b) Elective or semi-elective monarchies characterized by the fact that the one at the
throne was chosen, however, provided that he is part of a princely family, to be descendent of
a monarch.
c) Absolute monarchies whose main feature is the unlimited power of the monarch, his
will being legally binding.
d) Constitutional monarchies characterized by the fact that the powers of the monarch
are not endless, but are limited by the constitution, being about modern monarchies.
Constitutional monarchies are also differentiated into parliamentary monarchies and
dualist monarchies.
The parliamentary monarchy is that where the monarch has smaller tasks, thereby

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expanding the powers of the parliament. From the parliamentary majority being formed also the
government. In conclusion, the monarch does not govern, but he reigns.
The dualist monarchy is characterized in that the monarch has broad attributions
conferred by the constitution, him no longer being only the head of state but also the head of
the executive, and yet having legislative powers by issuing decrees-laws.
The monarchy is a form of government that was almost exclusive in Antiquity and in
the Middle Ages, but in modern times it is rare, remaining in some countries a tradition.

The republic is a form of government where the superior power belongs to a body
elected for a limited time. People who compose the elective body are legally responsible for
their work.
The republic, in turn, may be parliamentary or presidential.
The parliamentary republic is characterized by the fact that the head of state is either
missing or he is elected by the parliament, responding towards him.
The presidential republic is characterized by the election of the head of state by the
citizens, either directly or by universal, equal, secret and freely expressed vote, or indirectly
through electoral colleges (eg USA).
This way of electing the head of state, puts him in an equal position with the parliament.
In most cases, these republics position at the head of state at the forefront of the executive.

c. The political regime

The political regime includes all methods and means of the leading a society.
Democracy is the form of government and political system in which the power belongs
to the people. Moreover, democracy is defined as a government of the people, through the
people and for the people.
The autocratic regime is characterized by both the existence of formal legal conditions
and the real conditions for the manifestation of the will of people. People have no opportunity
to determine or to influence the domestic and foreign policy of the state.

* *
*

The development of the organization forms of ruling mankind has shown that the state is
a special unique phenomenon in the history of the society, it’s essential details developing
especially in the political and legal areas.
From a legal perspective, the state is the expression and institutionalization of political
power in the society, the institutional system created by this power in order to exercise it. In this
legal context, the state achieves the political power with the help of the law, which is the most
important factor generating legal rules and a guarantee for the application of these rules. The state
is thus the normal form of political organization of the society.
The term state is used, usually, in three important meanings promoted in the legal
doctrine:

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 • the state represents the central power - in this sense we distinguish between the state
and local authorities;
• the state represents the governments - in the sense that the state designates, on the one
hand, those who lead and on the other hand, those who are led, acception that makes the
differentiation between rulers and the ruled;
• a third sense is that the state designates an organized political society.
The state differs from other institutions, by the specific nature of the fundamental
activities which it is required to perform, activities that, typically, are designated by the term
functions of the state. It is considered, in general, that there are three functions: the legislative
function; the executive function and the judicial function.
 The legislative function is that activity of the state, whose purpose is the development
of rules of social behaviour, general, impersonal, of repeated and binding application, likely to
be punished by coercive force of the state, and any other rules of conduct are subordinated to
them.
 The executive function is to ensure the smooth functioning of public services, the
organization of law enforcement and their application to concrete cases by the authorities who
represent, in their totality, the state administration.
 The judicial function is the activity of the state, which aims to solve with the power of
legal truth and independence within a public proceeding and contradictory to legal conflicts,
namely those situations where one or more individuals claim in contradiction with others that
the rule of law has been violated. The possibility of resorting to the state's coercive force in
case of violation or disregard of its provisions is usually provided in the internal structure of
any legal norm, namely in sanction.7
Starting from the definition of the state which shows that the state is an organized power
upon a population, in a given territory, there can be identified as the main constituents of the
state, without which we cannot speak of a state entity:
 the nation (population) - is defined as a great human community that exists on the
same territory and possesses a common language and cultural, economic and spiritual unity;
 the territory - part of the globe, including soil, subsoil, waters and air column above
the soil and waters, over which the state exercises its sovereignty;
 state power - the notion of public power is that organ system, designated by the
process of direct consultation of people living in a given territory, in order to perform the
legislative, executive and judicial functions, excluding the subordination of these organs to
higher or competitor authorities.
The state form is a political and legal concept, which expresses the establishment,
management and exercise of state power. The form of state power is different from state to
state depending on three important criteria: state structure, form of government and political
system.
The state structure, which indicates the form of public authorities and institutions, the
limits of material and territorial jurisdiction and the competences of them, respectively the
specific links between the whole and a part.
7
D. Gorun – Acţiunea penală şi acţiunea civilă în procesul penal, Ed. Pro Universitaria, Bucureşti, 2013 – pg. 6

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 The form of government designates the training and organization of state structures -
authorities and institutions - the characteristics and principles that underpin relations between
institutions, especially between the legislature and executive bodies, including the president.
The political regime expresses the relationship between political power and state power
and the relationship between them and the individual, on the one hand, and on the other hand,
the means and methods of expressing power, of consecration and guarantee of fundamental
rights and freedoms of citizens.
The rule of law is the natural and necessary connection between the legal norm and the
political reality, reflected by the interdependence of the two social phenomena: the state and
the law and manifested by the establishment and exercise of state power based on the law.
The rule of law can only be based on the principle of separation of powers. The
constitutional separation of state powers does not aim only the mutual control of supreme
bodies, but seeks to ensure also transparency of the state apparatus activities.
However, the separation of powers in the state is the one that protects the citizens
against possible abuses of any state authorities, while making them understand how to carry
out the government program.
The freedom of a society can be guaranteed only when the state authority is separated in
autonomous areas. The separation of state powers is the one that differentiates fundamentally
the liberal democracy from dictatorship.

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