cHapTer 4 THE NATURE OF THE STATE AND ITS FUNCTIONS 4.1 Definition of the State According to Salmond, “A state or political society is an associ- ation of human beings established for the attainment of certain ends by certain means.” It is the most important of all the various kinds of society in which men unite, being indeed the necessary basis and condition of peace, order, and civilization. Focusing on territory, Salmond defines the state “as a society of men es- tablished for the maintenance of peace and justice within a deter mined territory by way of force.” A complete analysis of the nature of law involves an inquiry into the nature of the state, for it is in and through the state alone that law exists. Kelsen said that “the state is law and law is the state.” Itis to be noted that jurisprudence is concerned only with the elements and first principles of this matter. An exhaustive the- ory of political government pertains not to jurisprudence, but to the allied science of politics. In law, the purpose is to establish a sound juridical theory. 4.2 Essential Elements of the State What then is the essential difference between this and other forms of association? In what does the state essentially differ from such other societies as a church, a university, a joint-stock company, or a trade-union? Salmond says that the difference is clearly one of function. These functions require some additional elements and these are discussed by Salmond in detail. For the lawyer, according to Salmond, the following essential elements are important: 6162 Jurisprudence 42 The state is a legal person: The state is a legal person, a legal entity. This personality is recognized under interna- tional law. Having a legal personality grants perpetual ex- istence to a the state and enables it to own territory in its own name. There are a number of other benefits that flow from the personality of the state. The state performs certain primary and secondary func- tions: According to Salmond, the state has two primary functions. These are administration of justice and waging war Administration of justice is the internal function of the state, while waging war is the external function of the slate. In re- ality both functions are the two faces of the same coin. To- day, waging war may be termed the maintenance of peace- ful relations with other states for purposes of peaceful co- existence. A state has territory: The territory of a state is that portion of the earth’s surface which is in its exclusive possession and control. It is that region throughout which the state makes its will permanently supreme, and from which it perma- nently excludes all alien interference. This exclusive pos- session of a defined territory is a characteristic feature of all civilized and normal states. Itis found to be a necessary con- dition of the efficient exercise of governmental functions. It is theoretically possible for a state to exist without territory, but it cannot last long and will lack other elements essential for a state. Asstate consists of members: Members of the body politic are of two types: citizens and residents. ‘The former is a per- sonal, the latter merely a territorial bond between the state and the individual. The former is a title of permanent, the latter one of temporary membership of the political commu- nity. Both classes are equally members of the body politic, and are entitled to the protection of the laws and govern- ment of the state, and to such laws and government both alike owe obedience and fidelity.43 Jurisprudence 63 A state is governed by a constitution: As soon as a soci- ety acquires some permanence it needs clearly defined rules that lay down its structure and direct the performance of its functions. This is a document that is agreed upon by the citizens. It lays down in detail the powers and functions of the different organs of government, and specifies how the state is to be governed. A constitution may be written or unwritten as long as the rules are reasonably clear. A state has a government: The aggregate of all the per- sons or groups of persons who possess any share of civil power constitutes the Government of the state. They are the agents through whom the slate, as a corporate entity, acts and moves and fulfills its end. Civil power is usually shared by dividing the organs of the government into three: legisla- ture; executive; and judiciary. This is based upon the theory of separation of powers. A state may be independent or dependent and unitary or composite: States may be classified in two different ways : (1) with respect to their external relations to other states, and (2) with respect to their internal composition. The former mode has regard to their international, the latter to their con- stitutional position and structure. Classified internationally or externally, states are of two kinds, being either indepen- dent or dependent Classified constitutionally or internally, they are also of two kinds, being either unitary or compos- ite. The other classifications like imperial, federal and so on flow from these main classifications The Primary and Secondary Functions of a State. ‘The modern state does many things, and different things at dif- ferent times and places. Its functions are, however, divided into two: primary functions and secondary functions.64 Jurisprudence 43, 4.3.1 The Primary Functions of the State The primary and secondary functions of the state are discussed below. 43.1.1 ‘Two functions: administration of justice and war According to Salmond, the primary functions of a state are two: war and the administration of justice. The fundamental purpose and end of political society is defence against external enemies, and the maintenance of peaceable and orderly relations within the community itself. These two functions can be traced in his- tory from the earliest times. Thus, the Bible says that the Israelites demanded a king, that he “may judge us, and go out before us, and fight our battles.” Leviathan,’ as Hobbes tells us, carries two swords, the sword of war and that of justice. Thisis the irreducible minimum of governmental action. Every society which performs these two functions is a political society or state, and none is such which does not perform them. These two primary functions are simply the two different ways in which a political society uses its power in the defence of itself and its members against external and internal enemies. They are the two methods in which a state fulfills its appointed purpose of establishing right and justice by physical force. 43.1.2 Relations Between the two Essential Functions We first point out the similarity and the difference. 4.3.1.2.1 Similarity between the two _ It is not difficult to show that war and the administration of justice, however diverse in ap- pearance, are merely two different species of a single genus. The essential purpose of each is the same, though the methods are different. Each consists in the exercise of the organized physical force of the community, and in each case this force is made use of to the same end, namely, the maintenance of the just rights of the community and its members. Leviathan mean mortal god. Itis the title of Hobbes’ book.$4.3 Jurisprudence 65 4.3.1.2.2 Difference between the two The essential difference between these two functions may be summarized as follows 1, Administration of justice is the “judicial,” while war is the “extrajudicial” use of the force of the state in the mainte- nance of right a) Force is judicial, when it is applied by or through a tribunal, whose business it is to judge or arbitrate be- tween the parties who are at issue. It is extrajudicial, when it is applied by the state directly, without the aid or intervention of any such judge or arbitrator. b) Judicial force involves trial and adjudication, as a con- dition precedent to its application; extrajudicial force does not. Judicial force does not move to the main- tenance of rights or the suppression of wrongs, un- til these rights and wrongs have been authoritatively declared and ascertained by the formal judgment of a court, But extrajudicial force strikes directly at the of- fender. It recognizes no trial or adjudication as a con- dition of its exercise. Judicial force is regulated by law, while the force of arms is usually exempt from such control. Judicial force is commonly exercised against private per- sons, extrajudicial force against states. Administration of justice is generally the internal, while war is generally the external exercise of the power of the state. In the administration of justice the element of force is com- monly latent or dormant, whereas in war it is seen in actual use 4.3.2 Secondary Functions the State The secondary functions of the state may be divided into two classes.66 Jurisprudence 4 4.3.2.1 Functions that serve and secure the primary functions The first consists of those which serve to secure the efficient ful- fillment of the primary functions, and the chief of these are two in number, namely legislation and taxation. Legislation is the for- mulation of the principles in accordance with which the state in- tends to fulfill its function of administering justice. Taxation is the instrument by which the state obtains that revenue which is the essential condition of all its activities. 4.3.2.2 Functions that serve and secure other activities The remaining class of secondary functions comprises all other forms of activity which are for any reason deemed specially fit to be undertaken by the stale. This special fitness may proceed from various sources. It is derived partly from the fact that the state rep- resents the whole population of an extensive territory; partly from the fact that it possesses, through the organized physical force at its command, powers of coercion which are non-existent else- where; and partly from the fact that its financial resources (due to the exercise of its coercive powers by way of taxation) are im- mensely beyond those of all other persons and societies. Consid- erations such as these have, especially in modem times, induced the state to assume a great number of secondary and inessential functions which in a peaceful and law-abiding community tend even to overshadow and conceal from view those primary func- ions in which the essential nature of the state is tobe found. These functions are obvious like providing food, shelter, health facilities and so on. 44 Necessity of a Constitution, and Meaning of Constitutional Law Constitutional law is a “body of those legal principles which de- termine the constitution of a state—which determine, that is to say, the essential and fundamental portions of the state's organi- zation.”44 Jurisprudence 7 4.4.1 The Need for a Constitution The organization of a modem state is of extraordinary complexity, and it is usual to regard it as divisible into two distinct parts. The first consists of its fundamental or essential elements; the second consists of its secondary clements—the details of state structure and state action. The first, essential, and basic portion is known as the constitution of the state. The second has no generic title. In the definition of a state as a society with a special end and function, there is implied a permanent and definite organization a determinate and systematic form, structure, and operation. It is only when society has acquired a permanent and concrete orga- nization, whether by way of agreement, custom, forcible imposi- tion, or otherwise, that it takes on the nature of a body politic or state, and it is then that it needs a constitution. 44.2 The Nature of Constitutional Law constitutions are either written or unwritten, and then they may be de jure or in fact. 4.4.2.1 Written and unwritten constitutions Constitutional law is as its name implies, the body of those legal rules which determine the constitution of the state. If the constitution is unwritten, it is not possible to draw any hard and fast line between the constitution and the remaining por- tions of the state's organization; neither, therefore, is it possible to draw any such line between constitutional law and other branches of the legal system. The distinction is one of degree, rather than one of kind, and is drawn for purposes of practical convenience, rather than in obedience to any logical requirement. The more im- portant, fundamental, and far-reaching any principle or practice is, the more likely it is to be classed as constitutional. Conversely, the more special, detailed, and limited in its application, the less likely it is to find a place in any exposition of the law and practice of the constitution. Where the constitutions are written, and this is the case in most countries, the distinction between constitutional law and the rest68 Jurisprudence 4 of the law can be made more easily. Further, an unwritten consti- tution is considered flexible, while a written constitution is rigid. Constitutional law distributes the powers between the differ- ent organs of state; namely, the legislature, executive and the judi- ciary. In federations, the powers between the federation and the federating units are also defined. The written constitution also identifies and guarantees certain fundamental rights. 4.4.2.2 Constitution in fact and de jure Salmond raises the issue that the state comes into existence before the constitution and so does its law. Can we then say that there can be no state without a constitution? He gives the example of the United States and its creation through a struggle for indepen- dence ‘As an illustration of the proposition that every constitution has an extra-legal origin, we may take the United States of Amer- ica. The original constituent states achieved their independence by way of rebellion against the lawful authority of the English ‘own. Each of these communities thereupon established a con- stitution for itself, by way of popular consent expressed directly or through representatives. By virtue of what legal power or au- thority was this done? Before these constitutions were actually es- tablished, there was no law in these colonies save that of England, and it was not by the authority of this law, but in open and forcible defiance of it, that these colonial communities set up new states and new constitutions. Their origin was not merely extra-legal; it was illegal. Yet so soon as these constitutions succeeded in obtain- ing de-facto establishment in the rebellious colonies, they received recognition as legally valid from the courts of these colonies. In Pakistan, this problem was solved through the 1935 Act. 4.4.3 The Government of the State Political or civil power is the power vested in any person or body of persons exercising any function of the state. The aggregate of all the persons or groups of persons who possess any share of this civil power constitutes the Government of the state. They are4 Jurisprudence 6 the agents through whom the state, as a corporate entity, acts and moves and fulfills its end. 443.1 Legislative, Judicial, and Executive powers In respect of its subject-matter, civil power is of three kinds, dis- tinguished as legislative, judicial, and executive; and the govern- ment is similarly divisible into three great departments, namely, the legislature, the judicature, and the executive. The executive is simply the residue of the government, after deducting the legis- lature and the judicature. 4.4.3.2 Sovereign and subordinate power In respect of its extent civil power, whether legislative, judicial, or executive, is of two kinds, being either sovereign or subordinate. Sovereign or supreme power is that which is absolute and uncon- trolled within its own sphere. Within its appointed limits, if any, its exercise and effective operation are not dependent on or subject to the power of any other person. An act of sovereign power is ‘one which cannot be prevented or annulled by any other power recognized by the constitution of the state. Subordinate power, on the other hand, is that which, even in its own sphere of operation, is in some degree subject to external control. There exists some other constitutional power which is superior to it, and which can prevent, restrict, or direct its exercise, or annul its operation. 4.5 Theory of Sovereignty Expounded by Hobbes and Explained by Salmond 4.5.1 Meaning of Sovereignty Sovereignty means power that “is absolute and uncontrolled.” When a power is “subject to the control of some power superior and external to itself,” then such power is not sovercign. The theory of sovereignty was first developed by the French philosopher Jean Bodin. It was further developed and expounded70 Jurisprudence by the British thinker Hobbes. It is Hobbes’s theory of sovereignty that Salmond elaborates. The theory has three fundamental propositions: 1. That sovereign power is essential in every state. 2. That sovereign power is indivisible. 3. That sovereign power is unlimited and illimitable. Each proposition is discussed below. 4.5.2 Sovereignty is Essential Every political society involves the presence of supreme power, but the nature of this power depends upon the independence and dependence of the state. In all cases, sovereign power is necessar- ily present somewhere, but it is not in all cases to be found in its entirety within the borders of the state itself. 4.5.2.1 Sovereignty in an Independent State Itis, indeed, only in the case of those states that are both indepen- dent and fully sovereign that the sovereignty is wholly internal, no part of it being held or exercised by any other authority. If this were not so, all power would be subordinate, and this supposition involves the absurdity of a series of superiors and inferiors ad in- finitum. Yet although this is so, there is nothing to prevent the sovereignty which is thus essential from being wholly or partly external to the state. Where a state, though independent, is only semi-sovereign, its autonomy is impaired through the possession and exercise of a partial sovereignty by the superior state. 4.5.2.2 Sovereignty in a Dependent State When a state is dependent, that is to say, merely a separately or- ganized portion of a larger body politic, the sovereign power is vested wholly or in part in the larger unity, and not in the depen- dency itself. This is the case with the federating units of a federa- tion.4 Jurisprudence 7 4.5.3 Sovereignty is Indivisible Every state, itis said, necessarily involves not merely sovereignty, but a sovereign, that is to say, one person or one body of persons in whom the totality of sovereign power is vested. Such power, it is said, cannot be shared between two or more persons. It is not denied that the single supreme body maybe composite, as the English parliament is. But it is alleged that whenever there are in this way two or more bodies of persons in whom sovereign power is vested, they necessarily possess it as joint tenants of the whole, and cannot possess it as tenants in severalty of different parts. The whole sovereignty may be in A., or the whole of it in B., or the whole of it in A. and B. jointly, but it is impossible that part of it should be in A. and the residue in B. Salmond explores the concept that the “British parliament is supreme,” at some length. The net conclusion is that this sovereign power is shared and the concept of absolute of sovereignty cannot be claimed even for a parliament like that of England. In a country like United States, where the theory of sep- aration of powers works more effectively, it cannot be claimed that one body or organ is supreme and fully sovereign. Itis pertinent to point out that in Pakistan the claim is made that parliament is supreme. This is not true and the claim appears tobe based upon the British model. Even the legislative power de- pends, so to say, on the “consent” of the Supreme Court. Further, the claim that the Constitution is supreme demolishes the theory of sovereignty itself 4.5.4 Sovereignty is Illimitable Sovereign power is declared by the theory in question to be not merely essential and indivisible, but also illimitable. Not only is it uncontrolled within its own province, but that province is infinite in extent. Austin says that “the power of a monarch properly so called, or the power of a sovereign number in its collegiate and sovereign capacity, is incapable of logical limitation .... Supreme power limited by positive law is a flat contradiction in terms.”72 Jurisprudence $46 Salmond says that this argument confounds the limitation of power with the subordination of it. That sovereignty cannot within its own sphere be subject to any control is self-evident, for it follows from the very definition of this species of power. But that this sphere is necessarily universal isa totally different propo- sition, and one which cannot be supported. Following a detailed analysis, Salmond concludes that the concept that sovereignty is illimitable is not to be found in modern states. 4.6 Freedom and the Limits of Legitimate Law Laws place restrictions on human freedom. Criminal laws, for example, penalize certain acts with imprisonment and, in some cases with death. Likewise, civil laws require people not to injure others and to honour their contracts. The question arises as to what are the limits of the state's legitimate authority to restrict, the freedom of its citizens? John Stuart Mill started a debate about this by laying down the harm principle. He said: [T)he sole end for which mankind are warranted, individ- ually or collectively, in interfering with the liberty of action of any of their number is self-protection, The only purpose for which power can rightfully be exercised over any mem- ber of a civilised community against his will is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. Over himself, over his own body and mind, the individual is sovereign. Mill's view has generated considerable controversy among philosophers of law and political philosophers. Many philoso- phers believe that Mill understates the limits of legitimate state authority over the individual. The law may be used: * to enforce morality, * to protect the individual from himself; and * in some cases to protect individuals from offensive behavior.