STATE, GOVERNMENT AND PUBLIC ADMINISTRATION

1. STATE

The concept of State arose from the ancient concept of city, from the Greek polis and of the
Roman ciuitas. In the 16th century, the term State came to be used with the meaning of force,
power and law. Duguit defined the State as a force at the service of Law and argued there to be
Public Law without limitation of the power of the State.

The State is defined as a group of people who cohabit the same territory with defined limits,
organized in a way that only some persons are appointed to control, directly or indirectly, a
group of activities, based on real or socially recognized values and, when necessary, based on
strength.

State means a grouping of people established or fixed in a given territory subject to the authority
of a sovereign power.

In legal language, the State is an institution, a legal entity governed by law. Internal public,
civilly responsible for the acts of its representatives who, in that quality, cause damage to third
parties, acting contrary to the law or failing to fulfill a duty prescribed by law.

The State is the political - administrative - legal organization and has the power to impose norms
and demand their compliance from civilized society.

1.1 The fundamental elements of the State

The State to exist needs some elements.

i. Government – The act or effect of administering, a political system that directs a State
with sovereign power. It is the necessary organization for the exercise of power and leads
the population to comply with the rules it establishes as a condition for social
coexistence;
ii. People – group of inhabitants of a certain place. represents the human elements, common
to all societies; is the group of people who come together to form the State, establishing a
legal bond of a permanent nature with it, acting in the formation of the will of the State
and in the exercise of sovereign power. People are therefore human element of the State
and as the State is a society it is necessary to presence of people, that is to say, there is no
State without people. According to Azambuja: People is the population of the State,
considered from a purely juridical point of view, it is the human group envisaged in its
integration into a determined state order, is the set of individuals subject to the same
laws, are the subjects, the citizens of a State. In this sense, the human element of the State
is always a people, even if formed by different races, with different interests, ideals and
aspirations.
 iii. Territory – Extension of land that is under the direction of a government. The State is
governed by a minority, whose strength comes from the combination of economic
(wealth), political (strength) and ideological (knowledge) power. is the physical base of
the State to which the limit of its existence is imposed. jurisdiction. There is no State
without territory, since it establishes the limits physical effects of state sovereignty. The
territory is, in other words, the element geographical area of the State, that is, the portion
of the terrestrial globe occupied by it, which determines the area of its jurisdiction.
iv. Power — it is the possibility of the State to oblige individuals to do or not to do
something according to its object, which is the common good, the good of the
collectivity, within the limits of its territory. The power of the State is present through the
government, which is the authority supreme or political organ of the State, endowed with
sovereign power. Thus, the power of the State is not subordinated to any other type of
power within the scope of its territorial jurisdiction, that is, within the limits recognized
by the International Law, the law of the State extends to all sectors of social life and,
prima facie, he is always right when it comes to skills.
v. Sovereignty: Absolute and indivisible power to organize and conduct itself according to
the free will of its people, and to enforce its decisions, including by force, if necessary.

1.2 States powers

The theory of the separation of powers of the State, also known as the theory of the functions of
the State, has generated divergences among public law treatises.

We will leave aside the controversial points to dwell on the coincident points, in first place. We
have that the power of the State is one and indivisible, or, in the words of Dallari:

Although the expression separation of powers is classic, which some authors distort the division
of powers, it is common ground that the power of the State is one and indivisible. It is normal
and necessary for there to be many bodies exercising the sovereign power of the State, but the
unity of power is not broken by this circumstance.

Having made this point about the indivisibility of State power, it is necessary to distinguish the
three modalities or types of functions that occur in the State contemporary.

The first function is that in which power manifests itself “in the form of general and obligatory
norms for all inhabitants, that is, acts of the State that they impose on everyone who finds
themselves in certain situations; is the legislative function, or the Legislature (…)”. Just like in
living organisms where each function is performed by an organ, in the State the specific function
of making the laws is performed by a peculiar body, the legislative body: it is the Parliament,
Assembly National, Congress. This denomination varies according to the various Constitutions.

The second great function of the State does not concern the enactment of the law that regulates
social life, but to singular acts, aiming at concrete objectives, particulars, such as the
appointment of officials, the execution of public services, tax collection. This state function is
called the executive function or

Executive power or, still, administrative function, and is carried out by the executive branch, also
known as the executive branch.

The third function of the State “appears when it settles disputes arising among citizens by reason
of the application of laws, when judging and punishing violators of these laws, when, in short, he
declares the Law, applies the laws in cases individuals, makes justice reign in social relations,
and ensures individual rights.

This is the judicial function, and the respective body is formed by the courts and judges, the
Judiciary Branch.”

The oldest version of the theory of the separation of powers of the state is found in Aristotle,
when demonstrating his concern in attributing himself to only one only individual the exercise of
power and, above all, with the practical impossibility that one man foresaw everything that even
the law cannot specify. According to Aristotle, in organization of the State there are three parts,
which must deserve special care: the assembly of the citizens, who are the deliberating body, the
true sovereign; the judiciary, which are the officials appointed by the assembly to perform
certain functions, and the judiciary body.

However, the modern conception of the separation of powers cannot inspiration the writings of
Aristotle, being, therefore, built with the development history of the State until the appearance of
the work of L'esprit des lois, published by Montesquieu, in 1748. According to Montesquieu, it
would be normal for the State to organize with three powers: a Legislative, an Executive and a
Judiciary, once that “all would be lost if the same man or the same body as princes, or nobles, or
of the people, exercised these three powers.”

The requirement for the separation of powers is evident in the Declaration of Rights of Man and
Citizen, approved in France in 1789, which in its Article XVI declares:

Art. XVI. Every society in which the guarantee of rights is not assured, nor the separation of
powers determined, has no constitution.

The theory of separation of powers, adopted in the constitutions of almost all of countries,
nowadays, is associated with the idea of a democratic state, being, therefore, an intricate
doctrinal construction called a system of brakes and counterweights. According to this theory,
the acts practiced by the State can be of two kinds: distinct: either they are general acts or they
are special acts. According to Dallari:

The general acts, which can only be practiced by the Legislative Power, constitute the issuance
of general and abstract rules, not knowing, at the time they are issued, the who they will reach. In
this way, the Legislative Power, which only practices general acts, does not acts correctly in
social life, not having the means to commit abuses of power or to benefit or harm a particular
person or group. Only after issuing the general norm is that the possibility for the Executive
Power to act is opened, through special acts. The Executive has concrete means to act, but it is
equally unable to help at his discretion, because all his acts are limited by the general acts
practiced by the Legislature. And if any of the powers comes the supervisory action of the
Judiciary, obliging each one to remain within the limits of their respective sphere of competence.

2. CONCEPT OF NATION

It is the largest society of people, united by one common conscience and culture. Although this
society of people occupies the same territory, leading its members to have an identity of interests
over the land and the place, its vital unity comes from a deep sense of its history, its religion or
their culture. Therefore, a nation can exist as a historical community and cultural, independent of
political autonomy or state sovereignty.

The nation is therefore a human group united by an affinity of tradition, language, customs and
religion, founded on the consciousness of a nationality.

The concept of nation cannot be confused with the concept of State. While this is the politically
organized nation, that is nothing more than a human grouping united by cultural, historical,
linguistic and religious ties. Furthermore, a State can be formed by more than one nation.

State authority, by virtue of its very essence, presumes the formulation of the true legal norm, a
presumption that no other authority can summon up. Therefore, sovereignty is the right of the
modern state, because only in modern state, the full primacy of the state legal order over the
rules of the other social circles that are part of it and represent the condition essential element of
the prima facie unconditional validity of the rules of law. The State, as a group of people
politically organized and geographically limited that has the right to use the power to prescribe
its values; it must have instruments through which it can operate.

3. GOVERNMENT

The government does part of the list of these instruments and is made up of people and bodies
designated to carry out the objectives of the State. All citizens of a State are not part of the
government, but usually have the right to choose or be heard in deciding on how the State will be
conducted and who will lead it.

The priority task of the modern State is the management, direction, exercise, performance, the
provision of public services. We can even say, roughly speaking, that the State is a veritable
factory of services of a public nature and that governing is, first of all, of all, manage these
services.
3.1 Forms of the Government

Public administration requires that a form of government be adopted, which is the way in which
power is organized and exercised: There are three classic forms of government: Machiavelli's,
Montesquieu's and Aristotle's.

Machiavelli (1469-1527), Italian philosopher, in the work The Prince (1532), writes: “All the
States and dominions that are over men are public or principalities”. In Machiavelli's dualistic
view, principality was the name given to the kingdom or monarchy (he uses the expression
prince a lot), and republic was the name given to aristocracy and democracy. The republic is
characterized by the periodic electivity of the Head of State, plurality of functions and
responsibility and the monarchy by heredity and lifetime, irresponsibility and impersonality of
functions by the monarch.

Montesquieu (1689-1755), French philosopher, divides the forms of government into monarchy,
republic and despotism. It considers that each of the three possible forms of government is
animated by a principle: democracy is based on virtue, monarchy on honor and despotism on
fear.

Aristotle (384-322 BC), Greek philosopher, in the work Politics (Politeia) comments on the
organization of the State. It divides the forms of government into pure and impure, according as
the authority is exercised with a view to the general good or only the interest of the rulers.

The pure forms – These are good forms of government and all aim at the common good:

i. Monarchy: good government by one person;

ii. Aristocracy: good government by a few people;
iii. Democracy (Politeia): good government by the many (the people in power).

The impure forms – These are bad forms of government:

i. Tyranny: Corruption of the monarchy, bad government by one, aims at the whole
monarch's wealth;
ii. Oligarchy – Corruption of the aristocracy, bad government of the few, aimed at the
interest of the dominant group;
iii. Demagoguery (Democracy) – Corruption of democracy, bad government of many, aims
at the particular interest of the majority, without caring about others.

3.2 Government Systems

i. Parliamentarianism – It is the system of government in which the head of state is not
the head of government. The head of state occupies the highest position of representation,
not participating in political decisions. The head of government is invited by the head of
state to compose the government and approved by Parliament receiving the title of Prime
 Minister (England), Chancellor (Germany) or President of the Council (Spain). When
there is a crisis, Parliament can replace the Head of Government.

ii. Presidentialism – It is the system of government in which the Chief Executive is elected
to fulfill a term and accumulates the functions of Head of State and Head of Government.
Thus, there is no dependence on the Legislative Power, since in Parliamentarism the
Head of Government needs parliamentary approval. In the Parliamentary System of
Government it is necessary to have the support of the majority in the Legislative Power
(parliament) to govern. When the government loses this majority, parliament can demand
the dissolution of the government, replacing it. In presidentialism it is possible to govern
even without having a majority in the Legislative Power. In Parliamentarianism,
members can choose to remain in support of the head of government, they can also
choose to bring forward the election of the new head of government. Thus, while in
parliamentarism the head of government depends on the majority in the Chamber to
remain in power. In presidentialism, the government is less dependent and
parliamentarians seek approximation, out of ideological conviction or in the hope of
obtaining benefits from the executive branch.