BCL Law Notes Constitutional Theory Notes
A collection of the best BCL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of BCL notes available in the UK this year. This collection of notes is fully updated for recent exams, also making them...
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7. The State
M. Weber, ‘Politics as a Vocation’(1919):
The State is the monopoly on legitimate use of force
Context of speech – given during German Revolution in 1919 = overthrow of German Empire in favour of republic post-WWI – Naval Command insisted on ordering climactic battle with British Navy despite defeat – sailor’s revolt prevented from taking place
Content
Politics is art of compromise & decision-making based on social benefits <> costs
Conception of State – as monopoly of legitimate use of force
State if and insofar as administrative staff uphold a claim to monopoly on legitimate use of force in the enforcement of its order
Caveats
Has not always been the case – eg in feudal states, private warfare permitted // religious courts with jurisdiction over heresy & sex crimes
“Monopoly” = source of legitimacy not source of force – eg right of self-defence derives from State authority
Politics = influence of distribution of force
3 grounds for legitimate rule – State merely a placeholder for political organisations
Traditional – patriarchal & based in habit
Charisma – Prophets, demagogues, etc
Are these ‘legitimate’?
Statutes – Legitimate legal authority
IE suggests State can exist independently of legal order? Or should legal order be more broadly defined? The concept loses its meaning if it collapses into social rules
2 forms of the State
Where administrators beneath the ruler have own powers of administration separate from the ruler – eg wealth, control over labour – aristocratic, feudal
Where administrators separated from actual tools of administration & become ‘confidants without means’ in the governmental organisation – modern
H. Kelsen, General Theory of Law and State (Russell and Russell: 1945), 181-201 (Keble Library)
The State is nothing more than its legal system
Nature of State as entity
Social order <> legal order
State as social order – legal order can’t exist without pre-existing social ‘State’ to regulate – just as physical person exists before legal person, social State exists before legal State
BUT individuals only form a community because legal rules regulate their behaviour – drawing of lines is artificial – State has no more natural identity than a corporation
Social State can exist, but not before the Juristic State – former presupposes the latter
Problems with characterisation as a social order – unity of individuals independently of the legal order
Political, social and economic interactions / commonality of will/interest
more intense between members of a State? If so, then only because of the legal delineation of the State
State boundary-drawing is only one way to group individuals – also ethnic groups (eg Kurds), language, interest groups, etc – probably division doesn't represent State lines
Organic theory – composed of its various parts – plainly absurd and calculated to reinforce legitimacy of institutions & duty of citizen to State
Raises problem of imputation – actions of State must be actions of some individual – only because they have legal authority in office
Domination theory – social interaction which binds State together is the character of demanding & obeying demands – BUT “State” demands are differentiated from other demands only by the presence of a legal system
“Political” social order – but only because it monopolises the use of force, which is the essence of law – equates to a religious fiction of a State behind the law as a god behind the sun
Weber – human behaviour oriented to legal order – but the legal order is the State – human behaviour can be oriented to different incentives (economic, social)
Organs of the State
Broad (any individual executing a legally backed function – eg incl citizens in election) <> narrow (persons holding office or acting with the authority of the State)
Narrow concept leads to imputation of acts to State
State only acts by its organs – organs are created by others (eg appointment of judges) – one organ superior to the other if it can create laws obligating it
BUT legislature <> judiciary (where power to strike down legislation) superiority is not clear
May be individual or composite
Procedure can be conceived as a series of incomplete partial acts leading to action by organ
Duties & rights of State
Traditionally (& assuming social<>legal duality) – if State is authoritative entity from which legal order emanates, what rights & obligations does it get from that legal order?
Makes conception of rights & liabilities of State easy to understand
In another way defies logic that a social entity with supreme authority over law should be constrained in any way – unless it constrains itself
= problem of auto-obligation
BUT if no duality – how can legal order impose obligations on legal order?
Only means that the law regulates its own creation (obligations as a legal order)
Or that it subjects itself to another authority that creates laws = international law, federation
And that persons making the law themselves the subject to it (obligations as individuals)
Duties (Delict) of State
= obligations & rights of individuals composing organs
violation of international law
State won’t have criminal obligations – but only because it doesn’t impose them on itself
Rights of State = benefits it confers itself contingent on legal processes – eg right of State to punish criminals (seems like an odd term) – perhaps right to protection national security
L. Green, The Authority of the State (Oxford University Press: 1990), chapter 3
Montevideo Convention
State (in international law) =
(a) a permanent population;
(b) a defined territory;
(c) government; and
(d) capacity to enter into relations with the other states.
N. Barber, The Constitutional State, chapter 2, 3.
Approaching the State
Elements of Statehood – territory, people, governance structures – shared by churches, corporations,...
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A collection of the best BCL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of BCL notes available in the UK this year. This collection of notes is fully updated for recent exams, also making them...
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