03 March 2012 Written by  Dagnachew Asrat and Sileshi Zeyohannes

State as a Political and Juridical Concept

State as a Political Concept

The sociology of law, as advocated by Duguit, the coherence of all associations, including that of the state, lies not in some mystic personality but in social solidarity, whose primary driving force may be attributed to collective security.

Society is the product of man’s instinctive desire for association, which in turn is expressed in terms of an aggregation or assemblage of people having common interests and who unite together by the consciousness of those common purposes, be they religious, economic or political. When man finds himself in such a situation, then as aptly said by Aristotle, man becomes a social animal. It is said that social relations are threads of life and social institutions are the looms on which those threads are woven to make the social garment. The entire scheme of life is an interwoven state of affairs for the attainment of the various purposes of life, among which one is political life which itself necessitates the establishment of political institutions through which political actions are undertaken.

When such aggregates of people start living a settled life in a more or less definite territory and begin to realize their common, social purposes of life, man in such processes of activities ends-up in the creation of a state. Gabriel Almod’s definition of the concept of state seems to be fitting here. He qualifies it as:-

“…… that system of interaction to be found in all society which perform the function of integration and adoption (both internally and externally) by the means of the employment, or threat of employment of legitimate physical compulsion.

The central notion in such human grouping or state is the existence of power relationship between and among individuals and institutions. It is this very relationship that is the raison d’être of all political institutions. In this respect, institution should be taken as “an idea of an undertaking which is realized and which persists in a social environment”. It is its endurance and permanence in a social matrix that makes an institution distinct from other social factors, for all social facts are not institutions. Institutions may take the form of either “institutions personas”; i.e. groups of human beings and establishments; and “institution of things and concepts”. Hence, concepts, principles, doctrines become institutionalized; and, as such, are referred herein and hereinafter as “institutions”. Law, consisting all these elements, reflecting a legal system and attached to state, falls in the category of institutions. Law in the widest sense of the term may therefore be identified as “[t]he sum of the conditions of social life….. as secured by the power of the state through the means of compulsion.”

Law may be a direct reflection of social, economic and political relationships of a society existing at a definite time and place. It may serve as an instrument of change or may be regarded as an agency of formal control. It may, more often than not, have any one of these or some or all of these. The point is that law is one among many institutions of social life. Constitution, as a foundation of political order, forms a separate department of law – a law that is supreme over other laws of the land in question.

For our purpose, one may start from the proposition that constitution is a mechanism by, or a channel through which political power is converted into an institution of the state, as a consequence of which power is structured. Because of the nexus between and among state, power and law, a constitution does not only govern the relationship between the governed  and the government (government understood as the agency or machinery of the state), but also lays down the basis and justification of sate and government, as juridical concept and structure. Seen from this vantage point, a constitution is none other than the institutionalization and legitimization of state power, in accordance with which authority is exercised and the limitations of which is prescribed therein. Here again, when a constitution is seen from the latter point of view it is a means of establishing controlled government.

The study of the nature and functions of state is therefore shared among a number of disciplines, fields of studies. Political science, though a discipline in itself, yet, is closely allied to law – public/private International/Domestic laws and International Relation; for all deal with theories, management of state power. It also partakes some aspects of anthropology and sociology for it is concerned with a particular type of human association; past and present, respectively. Law is also related to the study of Economics, for the latter is concerned with human material interest – interest of members of the society at large or those members at macro-, micro- and meso-levels. It has strong linkage with Ethics, History and such aspects of Psychology, particularly Social Psychology, Geography, which may in one way or another deal with expressions of Statehood. Political Science essentially deals with the development of the state; thus it deals with its origin, with its nature and organization, its purpose and functions and with theories of politics and possible patterns it may assume.

Constitutional Law can be said to be at a border line between Political Science and Law. Quite often, Law in general can be, among other things, an expression of policy perspective or may itself reflect political manifesto. Some policies may remain political for definite or indefinite time, yet a good number and aspects of polices are quite often articulated and brought down to earth by being reduced into legal instruments. A constitution is therefore, an interface of two disciplines; i.e. Political Science and the law of Constitution.

Students of Law of Constitution are to some degree concerned with all or some of these factors, which are essential factors of statehood and subjects of concern of Political Science.

The study of Political Science would be rendered naught if comparison is not made; so would it be the study of Constitutional Law. If comparative approach is found imperative, it would then be natural and logical to identify and sort out our own method of study. One can have no choice, as any inquiry into any social, but to use the historical, social-structural and/or functional paradigm approach (es).

Comparative Constitution, as a specialized field of study, is essentially the product of this/these approach (es). Thus, any courses of Law of Constitution cannot avoid making use of this approach.

The relative soundness of inferences and conclusion may only be tested by creating paradigms and drawing co-relations. Using these, one may arrive/formulate the relative validity of the hypothesis forwarded in the form of legal proposition.

Such proposition would look like, for instance:

  1. Framing a palatable  definition of a particular system;
  2. Identifying the most important institution(s) in such a system; and
  3. Classifying and explaining the similarities and differences that characterize each set of system.

In such a way, one can arrive at a palatable paradigm to a given society under consideration. One basic proposition that needs to be made in this respect relates to social behavior, particularly political behavior.

By such behavior we mean the array of social, economic, cultural, psychological and historical conditions within which a government operates, which pertain to the interests, beliefs, aspirations and goals of the communities’ involved. In as much as one can talk of social behavior, one can, presumably, likewise conceive the existence of institutional behavior. Thus, a “governmental action”,might be reflective of institutional behaviors. By “governmental action” we mean the type of decisions, the mechanism by which they are met and are carried out in specific political, state institutions and structures. In this respect, one may consider parties, the legislature, the executive, the civil service, the judiciary, and the like.

Institutional behavior becomes politically relevant only when it is addressed to governmental action – demanding it or trying to impede it. While virtually every kind of behavior in a society may at any given time become politically relevant, only those, that are always politically relevant are designated “political culture” of the society in question.

Political Power in this respect is therefore the capacity to influence, control or compel the political behavior of the other; i.e. government vs. people.


Political Culture and Constitution

The inner driving force of an existing political culture might have its roots in history.

Anyway, the desire and the actual set-up of a state presuppose an acceptance of some basic rules and procedures on the part of any society, which serve it as the common denominator of its constituting elements. This is what we commonly and broadly designate as a constitution - i.e. a law that constitutes a polity and society.

Here, a constitution is not taken to mean a document. It rather signifies here the embodiment and existence of agreement as to what constitutes power and who does what and how. Where the agreement relates to “what”, we say this is an agreement on substantive matters. When it relates to “how”, we qualify it as an agreement on procedural matters. More often than not a constitution embodies agreement on both; the what and the how. Using these as yard-sticks one can formulate three broad sets of paradigms of political culture.

  1. Where society has reached a very comprehensive, stable agreement on both of these questions, one can characterize it as a consensual society which means “nationhood” has been attained by that state.
  2. Where the agreement is fragile, not wide-spread and of temporary nature, we may characterize the society either as non-consensual or one with low-level of consensus; again depending on the depth, width and strength of the two criteria of agreements. Such a society, though has a state, is not yet a nation it is at developmental stage.
  3. Where conflict is sharp, prevailing or erupting often times, one may well be justified to designate these types of societies, as outright dissensus though there is some sort of a state, there is clearly no ground for nationhood.

The degree of consensus prevailing in society, then, is the most important trait of a political culture, which may relate to multiple arrays of orientations. Specifically the orientations involve the following:

a) The degree and the extent to which the individual and groups value the government as an instrument through which they can satisfy their interests and demands.

b) The degree and the extent to which the individual and groups consider that one can play an active role in promoting or impending polices that are favorable or unfavorable to governmental actions.

c) As a result of these two orientations, the degree and the extent to which individual and groups rely, accept and abide by governmental actions.

The ideal model of a consensual society, then, is one in which the people value, accept and use the government according to widely accepted and internalized rules. On the contrary, the model non consensual society has a government which operates either under no rule or under rules that are not as such valued or accepted. The 3rd model is one in which the individual either does not want to use or is unable to make use of or impede governmental actions for solving his problems. Here, there is no consensus, and therefore the state relies upon outright force.

In all societies at all times, one of the most prevalent phenomena is conflict concerning things people want or value. Generally interest relates to the allocation of scarce resources, the distribution of power, the fulfillment of expectations and the maintenance of things which are highly valued.


Configuration of Political Power

All these categories of interest are manifested in five forms of instrumentalities of conflicts; five modes of acquisition of power. The primary category is class. Here society is divided into two sections; one playing a dominant role, while the other is dominated. Quite often this results from control of property; movable/immoveable, tangible/ intangible, including stocks, securities and services. Within a class and usually cutting across classes, there is another prevalent form of conflict; that is group conflict. Group consists of people who have common interest. Interest can be envisaged as relating to only material interest. In its brooder sense it relates to purpose. Since material concern without goals (purpose) are hardly ever found organized; and conversely, goals without common material concerns can hardly sustain a group as a group for long, interest should better be understood as a common set of material interests and common goals.

What concerns students of Political Science, Sociology and Law is not to identify only the source of conflict, but primarily to study the manner in which it is resolved. Both concerns have to take note of the fact that interest in general, group actions, in particular, are then interwoven with political culture. Where interests have been socially acknowledged, as proper interests helpful to realize common goals in a manner compatible with the rest of values and procedures of a given society, then this becomes part of the political culture.

Interests are articulated and realized by groups and/or associations. Hence, groups and associations are dramatist persona of politics; i.e. leaders of these groups are dramatists on the stage, not for applause, but in matters of political interest the goal is to influence others to compel the will of others.

Influence, reduced to its simplest from, is the ability to make somebody does what you want him to do or make somebody pay the price, which you ought to have paid.

If power, then, is influence that one has over others, then it is most important and phenomenal aspect of political science that stems from wealth, status, control of the means of coercion and support (mandate).

Status, wealth, the control of the instruments of coercion – the three most common ingredients of power – began to be undermined by the middle of the nineteenth century. The growth of population and the rise of new occupational groups spurred by Industrial Revolution began to weaken the control of the landowning aristocracy and the wealthy. The slogan of the French Revolution and the success of the American Experiment provided important ideological weapons to the new social groups. These groups demanded access to politics. In some countries they were excluded, but in other they were grudgingly admitted. Soon the mass of industrial workers began to press upon the stage. It was at this juncture (somewhere between 1870 and 1910), that political organization and massive political participation began to delineate the present-day source of political power – support (mandate). Leadership shifted to those with the ability to command the support of large groups of people.

The system of the transition from the old status groups to popular support took place gradually. It owes its power to consensual political couture, in which support has become fountain and main source of power.

The dominant institution through which the people give to and with-hold their support became to be known as political party. Political parties represent interest, aggregate, mobilize, provide compromise between or among competitors, covert platforms of interest into policies and finally recruit the political leaders, who, when they assume control of government offices translate these politics into governmental action.

Party is thus like a train, interests and demands, feed the engines which convert these into energy and drives to a pre-determined goal. The engine is government, through and by which political power is actualized.

Last modified on Wednesday, 02 May 2012 13:05
More in this category: « State as a Juristic Person