the nation state and constitutionalism Flashcards
history
during the Middle Ages, the collapse of the roman empire resulted in an extreme political fragmentation in Europe, with the affirmation of local lords and communes as the new political authority. This radical transformation brought to an urgent need of new different legal systems. Legal fragmentation was a typical feature of the middle ages’ legal systems, only partially limited by courts’ jurisprudence. Feudalism was the result of the collapsed roman empire. The experience of the nation state arose from the need to get rid of these islands of power and fragmentation, because it was giving birth to too many islands of government which brought to conflict.
The idea of nation state can vary a lot, if we try to make a parallel between states and legal systems, we can say that states have different legal systems. There are states which vary a lot in size or internal arrangements, as well as states which vary in form of government.
There are states that have been recognized as such, and communities who are still waiting to be recognized (Palestine and Israel conflict). The notion of state varies a lot.
During the 15th century, with the settlement of the monarchies in France, Spain, Great Britain and Portugal, a process of reorganization of the political institutions took place. The outcome was a new political organization: the State.
definition of the nation state
The state is a political and legal organization, spread over a vast territory, driven by a centralized governmental authority and imposing a homogeneous legal order on people.
the process of state building
The process of state building followed a common route in Europe, with the emergence of an aristocrat who could predominate over his peers and handling complicated public functions, such as maintaining armies, granting internal security, regulating commerce…
This process also required a theoretical legitimacy of the concentration of power in the figure of the monarch. Political power was thought to be legitimized by God. The French philosopher Bodin is considered the father of this stream of thought. The power of the sovereign was thought to be indivisible and illimitable. The prince was “legibus solutos”, which meant that monarchs had no rules, they made their own laws and decided to either follow them or not follow them.
The peace of Westphalia
We have a date which is conventionally considered a formal recognition of the birth of the nation state: the signing of the Peace of Westphalia (1648). This signing brought to an end the long-lasting conflict between France and England. The treaty of Westphalia recognized the exclusive sovereignty of the state over its population, so other institutions (such as the church) were not allowed to intervene in state matters.
They recognized the existence of boundaries within which all of them may exercise exclusive control. They recognized what we now call a state. Together with this birth, there’s also another one, the birth of international law, because it was necessary for states to recognize each other.
The modern state is made of 3 elements:
1) Territory: territory represents an asset of the state; it identifies the boundaries in which a legal system is enforced. The existence of a territory expands in something more than land, it’s also water and land. It’s the first element to identify a state.
2) People: some of which are living in the territory within those boundaries and are subject to the state’s legal order, and some people who aren’t citizens. It’s a community of people who share a political belonging and are subject to the same political obedience.
3) Sovereignty: the authority in which a state considers itself the higher power of a territory. It claims the exclusive and legitimate power to use force, the power to produce norms, and to judge crimes.
Nowadays, most of these elements get blurred, in a globalized world, other entities are coming out (ex: Facebook saying “we are a state”).
States are being overcome by other entities which cross the state. The word state is used in so many ways that it lacks a specific meaning.
Constitutionalism
the notion of “constitutionalism” refers to a political and legal doctrine that first appeared in England during the seventeenth century, and spread throughout north America and western Europe. Constitutionalism represents the political and legal dimension of liberalism.
what is the aim of constitutionalism?
The aim is limiting political power, through the definition of three main legal means:
1) The adoption of a written constitution
2) The separation of power of the state among different branches of government
3) The legal protection of a wide range of individual rights
rule of law
(also called “ètat de troit” in France). According to it, political power should not depend only on the will of the sovereign, but it must follow legal procedures.
Popular sovereignty:
it allowed constitutionalism to implement the demands of popular movements, with their claims of legal equality, political empowerment and social justice.
