WEEK 2: STATE

1. WHAT IS STATE
2. FUNCTIONS OF STATE
3. ELEMENTS OF STATE
4. THEORIES OF STATE
5. STATE JURISDICTION
 What are the
importance of
state?
What are the roles
& functions of
state?

.
http://legal.un.org/ilc/texts/instruments/english/commentaries/2_1
_1949.pdf
What is
state?
THE ORIGIN OF THE STATE

• It is very difficult to know exactly the origin of the state. There are no
historical evidences to really show with certainty the origin of the state
(Abdul Rashid Moten, p.77).
• Political philosophers have formulated several theories to explain the
origin.
THEORIES OF STATE
Abdul Rashid Moten & Syed Serajul Islam (2011) – Chapter 5 (Nature and
Characteristic of State)
 1. THE THEORY OF DIVINE ORIGIN (TEORI
KETUHANAN)
• The oldest and the simplest explanation for
the origin of the state- from Divine origin. The • Example :

theory argues that : a) King in Japan, was acknowledged as the prince of

Sun Goddess, Amaterasu, - the most sacred of all
a) The state is created by God ( God has a deities in Shinto religion.
revelation to him about the establishment of One of the great issues was the position of the emperor.
the state) In the end, the constitution was presented as a gift of
the emperor to the people; he remained sovereign, but
b) The rulers are appointed by God and are he was also limited by the constitution: Article 4 ‘The
accountable only to God Emperor is the head of the Empire, combining in Himself
the rights of sovereignty, and exercises them, according
c) The rulers or the King must be obeyed as a to the provisions of the present Constitution’. The
emperor’s connection with Shinto was also expressed in
religious-duty and
Article 3: ‘The emperor is sacred and inviolable’.
d) The disobedience to the ruler’s command is
a sin and would invite divine punishment

• The rulers, therefore, combine the spiritual

and temporal power. This theory gives a rise
to the divine right of a king who emerge as a
B) Thai King also known as “Resmi
Rama 9” (King Bhumibol Adulyadei), • However, this theory was rejected –
claimed to have root with God of Rama many kings’ power were reduced in
the 19th-20th century.
C) Nepalese King, also as reincarnation
of Vishnu God. • Many critics – king misused of
power, the people should take
• This theory really place the people in
control , determine their own causes.
total obedience to the king to the
– also criticized of being
extend sacrificing their lives (i.e
undemocratic.
Japanese in 2WW)
• This obedience is religious, sacred
and should be respected.
2. THE FORCE THEORY (TEORI PAKSAAN)

• This theory argues that the state came into existence through violent force- “Might is Right”, as stated by C.C.Rodee.
• This theory based on the conception of human nature, that :
 man is a social animal and lust for power. The stronger captures the weak, and exercise authority on him. Gradually,
he expands his domain and ultimately became a King/ ruler. Machiavelli and Hobbes agreed that, only a strong prince
who uses power could stabilize a state/ only a strong body could secure the security of the people. They both go
“absolute power”.
The theory argues :
a) Force is an essential feature of a state
b) The states were born of force & conquest
c) Force is used as the instrument to maintain internal order and to use it outside of the state as to secure it from
external aggression.
d) Absolute power is needed to maintain stability.
 EXAMPLE : ISRAEL VS PALESTINE

Palestine News Network

http://english.pnn.ps/2016/02/20/resistance-and-
occupation/
 3. THE SOCIAL CONTRACT THEORY
• In general, this theory was introduced by 3 political philosophers, namely; Thomas
Hobbes, John Locke and Jean Jacques Rousseau.
• They all believed that a state exists because the people realize that they need to live
in a community since their state of nature is not comfortable. Hence, the people need
to make a “contract” to create a state to ensure their lives and well-being are taken
care of.
• The theory has 2 phases ;
a) The state of nature – the people do not have laws, government, or any institution to
manage the people affairs, but people are still behaving based of law of nature
b) The need of a state – the people feel that, they are better by having a
state to have a systematic and secure lives. Hence, a state as an
institution is needed to play these roles.
Hobbes (1588-1679)
Hobbes “Leviathan”
State of nature
Originally people are at peace-
but later, dirty, nasty, brutish,
and state of war (needs &
environment)
Thus, need
Locke (1632-1704) “Two Treaties
of Government”
State of nature
People are good, peaceful,
private life of an individual are
respected , and each has a right
to protect his/her interest
Rousseau (1712-1778), “The
Social Contract”, “Emile”.
Reasons for Civil Society
Hence, lives are not secure- lack Surrender all their rights to ONE
of security
However, as competition for life
(goods & services), one can
claim his more than others, and
create dominance (i.e property).
Types of Contract
person, called as sovereign, who
is given full trust to manage
Cannot take it back, cannot
challenge, absolute power – but
need to rule with justice and
equality
Rulers is not natural but granted
by the people’s consent
Thus, need a body to govern,
need an independent judiciary.
People surrender few of their
rights for the state to create
legislation.
 4. EVOLUTIONARY THEORY
• State comes into existence as a result of natural evolution.

• It evolves gradually as a result of men who need order and protection (other needs).

• Ibn Tamiyyah, it is natural in men that they wanted to cooperates with his fellow creatures
for common well-being and happiness. It cant be achieved without a social order, which
requires some authority to direct it.

• Western political thinkers explains that this theory as :

a) Human beings are by nature social animals. From the very beginning of human history, they
lived in society

b) The state is the product of growth, a slow and steady evolution extending over a long period of
time

c) Family was the earliest form of society, and kinship or blood relationship was the basis of
society

d) In course of time, families expanded into clans, clans into tribes and tribes into larger society.
Religion became the basis of social organisation.

e) War and migration also played important role in the formation of state.
 DEFINITION OF STATE
• According to Sidgwick. “State is a combination or association of persons in the
form of government and governed and united together into a politically
organized people of a definite territory.”
• According to Garner, “State is a community of people live in a definite form of
territory free of external control and possessing an organized government to
which people show habitual agreement.”
• Prof. Laski defines “state as a territorial society divided into government and
subjects whose relationships are determined by the exercise of supreme
coercive powe
ELEMENTS OF STATE

• From the above definitions, it is clear that the following are the
elements of the state :-
• Physical bases of the State
• 1. Population
• 2. Territory
• Political bases of the State
• 1. Government
• 2. Sovereignty
1.POPULATION

• It is the people who make the state.

• Population is essential for the state. Greek thinkers were of the view that the
population should neither be too big nor too small. According to Plato the ideal
number would be 5040.
• According to Aristotle, the number should be neither too large nor too small. It
should be large enough to be self sufficing and small enough to be well governed.
• Greek thinkers like Plato and Aristotle thinking on the number was based on small
city – states like Athens and Sparta. Modern states vary in population. India has a
population of 102,70,15,247 people according to 2001 census.
2. TERRITORY

• There can be no state without a fixed territory.

• People need territory to live and organize themselves socially and
politically. It may be remembered that the territory of the state includes
land, water and air – space.
• The modern states differ in their sizes. Territory is necessary for
citizenship. As in the case of population, no definite size with regard to
extent of area of the state can be fixed. There are small and big states.
3. GOVERNMENT

• Government is the third element of the state. There can be no state

without government.
• Government is the working agency of the state. It is the political
organization of the state.
• Prof. Appadorai defined government as the agency through which the
force of the State is formulated, expressed and realized.
• According to C.F. Strong, in order to make and enforce laws the state
must have highest authority. This is called the Government.
4. SOVEREIGNTY

• The fourth essential element of the state is sovereignty.

• The word ”sovereignty” means supreme and final legal authority above and beyond which
no legal power exists.
• Sovereignty has two aspects :
• 1) Internal sovereignty
• 2) External sovereignty .
• Internal sovereignty means that the State is supreme over all its citizens, and associations.
• External sovereignty means that the state is independent and free from foreign or outside
control.
WHAT IS STATE JURISDICTION

• Has several meanings :

It includes the legal capacity or power of a State to
a) establish, b)enforce, and c)adjudicate rules of law within
its boundaries
• A State’s legislature has power to enact laws governing
conduct within, and some cases, beyond its borders.
 TERRITORIAL PRINCIPLE

Common basis for jurisdiction.

State can exercise jurisdiction over persons, property, acts or events occurring,
within its territory.
Every state claims jurisdiction over crimes committed in its own territory, even by
foreigners.
The state jurisdiction also extend to the:
Superjacent airspace
Internal waters
The territorial sea
For certain purpose, beyond the territorial sea to adjacent maritime areas.
A. SUBJECTIVE TERRITORIAL PRINCIPLE
A State has jurisdiction over offences which commenced in its territory but were
completed abroad.
For example: a person fires a weapon across a frontier killing somebody in the
neighboring state.

B. OBJECTIVE TERRITORIAL PRINCIPLE

Generally accepted and often applied.
State has jurisdiction when any essential constituent element of crime commenced
in another State but completed in its territory.
Refer to Lotus Case.
GENERAL OVERVIEW

NATIONALITY
PRINCIPLE
2)PASSIVE
NATIONALITY 1) ACTIVE
PRINCIPLE/ NATIONALITY
PASSIVE PRINCIPLE
PERSONALITY
PRINCIPLE

CRIMINAL JURISDICTION