Pepito, Arjay F.

THE STATE AND GOVERNMENT

1. What is a Constitution?
A constitution is a body of fundamental principles or established precedents according to which a state or other
organization is acknowledged to be governed. e.g. the Constitution of the Philippines has a provision for democracy
so the government can't make a law that goes against that. Basically, a set of super laws, that are more important
than the normal laws.

2. What are the two kinds of Constitution?

A codified constitution is one that is contained in a single document, which is the single source of constitutional law
in a state. An uncodified constitution is one that is not contained in a single document, consisting of several
different sources, which may be written or unwritten; see constitutional convention.

3. What are the elements of a state?

Four essential elements. These are: (1)population, (2)territory, (3)government, (4)sovereignty (or independence).
The first two elements constitute the physical or material basis of the state while the last two form its political and
spiritual basis.

Population:

The state is a human institution. So, population is its primary element. There is no hard and fast rule about
population. The ancient Greek writers like Plato and Aristotle favored a small population. According to Plato, an
ideal state should have a population of 5040.

Aristotle laid down a general principle that the population of a state should be large enough to make it sufficient and
small enough to make good government possible. It must be remembered that both of them were thinking in terms
of small city-states.

In modern times, Rousseau, prompted by considerations of direct democracy, fixed the number at 10,000. In
modern times states vary greatly from the few thousands of Monaco or of San Marino to the crores of China or of
India. The modern tendency is in favor of large states. All that can be said is that a large population is an advantage
from the point of view of military defense.

However, a large population can be a liability if the resources of the state are not adequate for its maintenance. One
of the main problems faced by developing countries is over-population. Thus, there should be a happy balance
between the size of the population and material wealth of a state.
Territory:

A definite and more or less permanent territory is also regarded as an essential element of the state. In modern
times, the citizens are bound together by residence on a common territory. Land, water and air space comprise the
territory of a state.

As in population, so in territory, no limit can be laid down. Small states and large ones exist side by side. We have
tiny states like San Marino with an area of less than twenty-five square miles. On the other hand, there are giant
states like the Russian Republic, China, U. S. A., and Australia with millions of square miles.

According to international law, all states are equal in status and right, no matter how unequal they are in population
and area. It is claimed that small states are good for efficient administration and inculcating among the people a
sense of unity and love for the state.

However, the truth is that a small state is at a disadvantage in its relations with larger ones. Small states are under
the influence of one or the other large and powerful state. It is said in favor of large states that they are strong in
defense and because of availability of resources they are economically self-sufficient.

It may be pointed out that the power and security of a state are not determined only by the size of its territory.
Some other factors in this regard are geographical location, resources and climate.

Government:

A people occupying a definite territory cannot form a state unless they are politically organized i.e., unless they
possess a government. Government is the political organization of the state. It is the concrete and visible instrument
of state power.

According to Garner, government is the agency through which “common policies are determined and by which
common affairs are regulated.” The state wills and acts through the government. Government must be effective; it
must possess the capacity to maintain order and enforce obedience. Without a government there would be
lawlessness and anarchy and ultimately the state would be dissolved.

Government consists of three organs, namely, legislature, executive and judiciary. The legislature makes laws; the
executive enforces laws while the judiciary adjudicates cases or disputes.

There are different kinds of government in different states such as monarchy, democracy and dictatorship. Most of
developed states are democracies. Many developing countries including India have democratic governments.
Whatever may be the form of government, one thing is clear – there can be no state without government.
Sovereignty:

By far the most important characteristic of the state is its sovereignty. It is the characteristic which distinguishes the
state from all other associations. It denotes the supreme power or the final authority from which there is no appeal.

Sovereignty has two aspects internal and external. Internally viewed, the state has supreme power over all
individuals and associations within its fixed area. It can compel obedience of its people to its laws and commands.
Externally viewed, the state is free from control of any foreign state or alien rule. Before independence India was
not a state as it was ruled by the British.

Similarly, the Indian federation consists of many constituent units called ‘states’, but they are really not States in the
eyes of international law, as they are not sovereign. In the same vein, the United Nations (UN) is not a state as it is
not sovereign.

It should be noted, however, that absolute sovereignty is a legal concept. In actual practice no state is able to
exercise unlimited power either over individuals and associations within its territorial domain or in its international
relations.

A state respects and abides by international laws, treaties and the policies of the international organizations like the
UN and its agencies. A number of writers who have attacked the concept of absolute sovereignty on theoretical
grounds also hold that it is undesirable. H. J. Laski, for example, regards it as incompatible with the interests of
humanity and world peace.

4. What is a State?
A state is a polity under a system of governance with a monopoly on force. There is no undisputed definition of a
state. A widely used definition from the German sociologist Max Weber is that a "state" is a polity that maintains
a monopoly on the legitimate use of violence, although other definitions are not uncommon. A state is not
synonymous with a government, as stateless governments like the Iroquois Confederacy exist.

5. What is a Government?
A government is the system or group of people governing an organized community, generally a state.
In the case of its broad associative definition, government normally consists of legislature, executive,
and judiciary. Government is a means by which organizational policies are enforced, as well as a
mechanism for determining policy. Each government has a kind of constitution, a statement of its
governing principles and philosophy.

6. What is sovereignty?
The concept of sovereignty is permanently associated with the nation state system. It is the central formula under
that we try to nationalize the complicated facts of our modern political life. Sovereignty is an English word derived
from Latin world “super anus” that means ‘superior’ or the ‘super most’. Sovereignty has been defined as.
 It was the French jurist who used both the terms “sovereign” and “sovereignty” in fifteen century and after that
used in English as well. For the first time the word “sovereignty” used in political science in the publication of Jean
Bodin (1530–1596) “The Republic” in 1975.

7. What are the two kinds of sovereignty?

There are two aspects of Sovereignty. i.e. Internal Sovereignty and External Sovereignty.

Internal Sovereignty

Internal sovereignty means the supreme and final power to command all powers with in the territory of state. Its
will is absolute over all persons and associations. It issues order to all individual, and organizations with in the area
of state and receives order form all these persons and organizations. In this regard Prof. Laski says, “What is
proposes is right by the mere announcement of Intention.”

External Sovereignty

External aspect of Sovereignty implies that outside the state there is no legal power that can compel the state to
take a certain course of policy and action, in other words, the state is quite independent externally, that is, under no
legal foreign power or pressure. External sovereignty means that externally state is free and independent and its will
or authority cannot be question abroad. It means that state is free from any control, compulsion and interference by
a foreign state or power. In other words, it means that the will of the state is supreme against others will of foreign
state. Foreign treaties and international law do, not limit the supremacy or external. Sovereignty of nation state
system. External Sovereignty does not mean that the state has the power or control over other power or states, but
it means that it is not subject to the command of other foreign states.

8. What are the modes of acquiring territory?

The traditional modes of acquiring territory of a state are:

(a) discovery, (b) occupation, (c) prescription, (d) cession, (e) annexation, (f) conquest, (g) accretion and (h)
avulsion.

Discovery is the oldest method of acquiring title to territory. However, discovery alone would not suffice to establish
legal title. It is necessary that the discovered area must be physically occupied. Related to title by discovery is the
hinterland doctrine or the principle of continuity. If a state has made a settlement, it has a right to assume
sovereignty over all adjacent vacant territory, which is necessary to the integrity and security of the settlement.

Occupation is the intentional acquisition by a state over a territory which at the time of claim not under the
sovereignty of any state. There are two requirements: (1) the territory subject of claim must not be under the
sovereignty of any state (terra nullius); and (2) the state must have effectively occupied the territory, that is, the
state claiming the territory must have exercised immediate occupation (corpus occupandi) on the territory after it
displayed its intention to occupy (animus occupandi).

There are two elements of effective occupation. One is the intention and will to act as sovereign (animus), and two is
the peaceful and continuous display of state authority (factum). The intention can be displayed from the simple fact
of publishing notices of sovereignty in various state journals or issuing laws on territorial assertions. The display of
state authority must be peaceful and continuous. Mere protests from rival claimant states do not lose the peaceful
character of the display of state authority. However, consistent protests over a long period of time if not rebutted
by the claimant state may disturb the peaceful character of the display of state authority. The continuous display of
state authority encompasses two ideas: (1) that the display of authority is ongoing; and (2) the display of state
 authority must exist up to the "critical date". The critical date in a territorial dispute is the date on which the location
of territorial sovereignty is decisive. Normally it is the date of the origin of the dispute. The state which can present
an effective title in the period immediately preceding the critical date has the superior claim.

Prescription means continued occupation over a long period of time by one state of territory actually and originally
belonging to another state. There are four requirements of prescription: (1) the possession must be exercised in the
form of actual exercise of sovereign authority; (2) the possession must be peaceful and uninterrupted; (3) the
possession must be public; and (4) the possession must be for a long period of time. The peaceful and continuous
display is also an essential element although as compared to occupation, prescription requires a stricter proof and
longer period of the display of authority. Moreover, any protest or objection by the losing state destroys the
peaceful display of authority of the claiming state.

Cession is the transfer of territory usually by treaty from one state to another. Concomitant of transfer of territory is
the transfer of sovereignty from the owner state to another state. And since cession is a bilateral transaction, the
parties involved are states. Cession may also be in the form of exchange of territory or in the form gift or donation or
devise.

Conquest is acquiring territory by the use of force. The practice before was after conquest, the conqueror annexed
the conquered territory to his state. Thus, conquest first takes place followed by annexation. But with the
establishment of the United Nations, conquest is no longer acceptable in the international community.

A state may also increase or decrease its territory through accression and avulsion. Accression is the attainment of
sovereignty over new land due to slow movement of natural forces. Example of this is the gradual movement of a
river bed. On the other hand, if the natural forces happened suddenly, like creation of an island in territorial waters
due to volcanic eruption, it is referred as avulsion.

9. What do you mean by Regalian Doctrine?

The regalian doctrine is to the effect that all lands of the public domain belong to the State, and that the State is the
source of any asserted right to ownership in land and charged with the conversation of such patrimony. Under this
doctrine, all lands not otherwise appearing to be clearly within private ownership are presumed to belong to the
State. A positive act of the executive branch is needed to declassify a forest land into alienable or disposable land for
agriculture or other purposes. (Director of Lands vs. IAC, 219 SCRA 339 [1993])

10. What do you mean by Doctrine of Parens Patriae?

Parens patriae is a legal term referring to the power of the government to act on behalf of people who are unable to
care for themselves. For example, the doctrine of parens patriae empowers a judge to assign or reassign custody of
a minor child, regardless of the parents’ wishes. In practice, parens patriae may be applied as narrowly as
representing the interests of a single child and as broadly as protecting the wellbeing of the entire population.
References

[1] What is a constitution? (2014, August). Constitutionnet.Org.

https://constitutionnet.org/sites/default/files/what_is_a_constitution_0.pdf

[2] R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3, [207]

[3] Chacko, M. E. C. (2019, July 14). What are the elements of state? - Quora. QUARA. https://www.quora.com/What-
are-the-elements-of-state

[4] Wikipedia contributors. (2021, August 14). State (polity). Wikipedia. https://en.wikipedia.org/wiki/State_(polity)

[5] Wikipedia contributors. (2001, October 10). Government. Wikipedia. https://en.wikipedia.org/wiki/Government

[6] A. (2020, September 17). Sovereignty Meaning Characteristics Aspects and Definitions –. Study Lecture Notes.
http://studylecturenotes.com/sovereignty-meaning-characteristics-aspects-and-definitions/

[7] A. (2020, September 17). Sovereignty Meaning Characteristics Aspects and Definitions –. Study Lecture Notes.
http://studylecturenotes.com/sovereignty-meaning-characteristics-aspects-and-definitions/

[8] Dugan-Listana, C. E. (2021, August 21). MODES OF ACQUIRING TERRITORY. Politics and Governance.
https://politicsandgovernance.blogspot.com/2010/06/modes-of-acquiring-territory.html

[9] The Law Firm of Talampas & Associates. (2019, March 25). Facebook - Meld je aan of registreer je. Facebook.
https://www.facebook.com/unsupportedbrowser

[10] Robert Longley, R. L. (2021, January 4). What is the Legal Doctrine of Parens Patriae? ThoughtCo.
https://www.thoughtco.com/parens-patriae-definition-examples-4588615

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