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Beaud -Conceptions of the State
Introduction The aim is to examine the question of the state in the plural. And in assuming there to be more than one conception of the state, the editors clearly give us the understanding that distinct constitutional traditions or cultures think of the state in different ways. Just think of England, which is so important for the understanding of modern constitutional law and of the satellite community of common law countries. As readers will have grasped, one of the aims of this chapter is to challenge the idea that the concept of the state is a central feature of constitutional law everywhere.
Two Distinct Ways of Viewing the Relationship between Constitution and State The purpose of my line of inquiry is more limited and is confined to underscoring the existence of two separate traditions: -the continental, Roman, “European” tradition that almost systematically associates the idea of constitution with that of state; -and the common law tradition that tends to think of the one separately from the other. The State as a Presupposition of the Constitution The continental European tradition is distinctive in that it considers the concept of state itself as being presupposed by the concept of constitution. More often than not, the constitution is defined by the(written) legal instrument that organizes and funds the state. From this legal-regulatory conception flows two major consequences for understanding the constitution. The constitution is the regulation of the state, that is, the legal arrangement by which the uppermost echelon of the state, its rulers, is organized and governed. This does not necessarily imply that power is limited, shared out, and controlled. A Constitution Thought of Without the State: The Rule of Law Imposes its Vision of a Simple ‘Government’ of Public Affairs Alongside this European tradition, which is state-centered even in respect of the concept of constitution, however, stands the common law tradition that does not at all perceive the constitution as being intrinsically related to the state.
State, Sovereignty, and Federalism: Can the State be Thought of as Anything Other than the Unitary State? Sovereignty as a Criterion of the State and the Tropism of the Unitary State In the European tradition, and by virtue of sovereignty, state power is held to be a power of dominance, even an irresistible power, such that the state may be defined as a “unit for decision-making and action”. It long implied that just a single form might be described: -the unitary state. Federalism came along to spoil this fine harmony and plunge jurists into terrible turmoil. The unitary state has been defined as the one which “legally appears to be that whose Power lies in its founding, in its structure and in its exercise”. In France, which is the land of the unitary state par excellence, political centralization is reflected in the terms of the Constitution by the principle that the Republic is indivisible. This principle means that “a single political power exercises sovereignty over the whole territory of the Republic, albeit that power may at tribute certain competencies, including competencies differentiated by location, to other authorities, notably local authorities.” This idea may be worded differently: statute law remains a monopoly of the central state. France is the prime example of the doubly(politically and administratively) centralized state that has evolved towards a form of decentralized unitary state in the administrative sense of the word. Some countries of Europe, notably Italy and Spain, are evolving from ‘unitary’ states into ‘regional’ states. A form of political regionalism is thus developing that resembles federalism without being federalism.
Generally, the federal state appears to jurists steeped in a unitary state culture to be an abnormal state compared with the normal, unitary state.
The State as an Institution: Asymmetric Treatment For a European constitutional law scholar, it goes without saying that the state is a personalized entity, separate from those who govern. This obvious point is reflected by the idea that the state is an artificial person. Objectivization of Power by the State Conceived of as an Institutionalized Power(or Juristic Person) In the European tradition, jurisprudence has inferred from this and other related facts that the state is to be distinguished from the sovereign, the “rulers” and from the government. The state, writes Georges Burdeau, is “an institutionalized power”. And so it is from the vantage point of the institution that we shall examine the state now considered as a juristic person, an abstract entity that is an artificial person. Here the job is to think about the mediation between the sovereign(sovereignty) and the state, that is, to think about the objectivization of power. It should next be emphasized that before being the subject of one or rather several legal theories, the state was first a practical challenge. Jurists had to invent a legal category, that of “person” or “body”, to meet the circumstances of the time. Institutionalization or Perpetuation of Power French and English jurists turned to various legal fictions as a basis on which to perpetuate royal power. Thus jurists were to invent distinctions between the state as owner and the rulers, between the republic as owner and the sovereign as administrator, and between office holder and office, inspired by the civil law distinction between the ownership of property and the enjoyment or use of it.
The Impersonalization of Power: Rulers Represent the State The institution-person does not have as its sole function to perpetuate power; it forms a decisive divide between the public person and the private person. Alf Ross: “Certain acts that are in reality performed by definite individuals, and who else could perform an act, are spoken of as being performed not by the physical person in question, but by a subject called the State. The act, one can also say, is attributed to the State”.
