First-Year Law Notes & Flashcards

Understanding State and Government

State, is a set of organized institutions operating in a territory with a substantial population composed of its citizens or subjects. A sate has a legal system to regulate the activities of society and to reconcile conflicting claims of individuals and groups belonging to it. In its positive functions, a state promotes welfare and justice for its citizens. In its negative functions, a state defends the integrity of its territory from foreign invasion, keeps order, and maintains the security of its citizens. State with its four fundamental principles population, territory, government and sovereignty becomes larger and supreme social institutions and by exercising power it demonstrates laws, norms to maintain the social order.

There are various theories about the origin and nature of the state among which Social Contract theories are important one. But the philosophical treatment towards the state manifolds different aspects as philosophy being a rational inquiry towards the world and human life, the political life of human being is also a matter of investigations and it is this philosophical investigation that shows that ‘wherever men have lived there has always been a ‘state’. That is to say, there has been some association or corporation, larger than the family. Here we find the oldest types of associated life – the ‘City – State’ of ancient Greece and the ‘Nation – State’ of the modern world.

‘City – State’: - Oldest type of associated life in ancient Greece.

‘Nation – State’: - Greek State, adopted and modified by the Modern world.

What is interesting here that, if according to Robert Paul Wolff’s definition that ‘political philosophy is a philosophy of the state’, then we can say that political philosophy began in connection with the former i.e. City – State of ancient Greece and revived in connection with the latter i.e. Nation – State.

A Greek city-state presented a marked contrast to the modes of human association which prevailed in the non- Greek world. It differed from them above all things by its distinct individuality. it is not the case that the concept of the state is a creation of the modern world rather the very instrument of all political action was invented, existed before the beginnings of modern world in the Greek city-state and in the Greek city- state alone. If today the notion of state stands for welfare of its citizens, the same we can trace in long back to Plato and Aristotle’s writings. The fundamental idea of Greek political philosophy is that the human mind can only attain its full and proper life in a community of minds i.e. the state. Aristotle states:

“Man is a creature formed for the life of the City – State.”

In modern time we can find the same expression that, ‘the realization of the best life of individual is only possible in a state’. From the expression, one can infer that the state has a moral purpose. Every community or all kind of association of life is established with a view to some good and that the individual is too viewed as part in relation to the whole, the state is ‘organic’ in structure. The state comes into existence in order that man might live, and it continues in existence for the sake of good life. Modern philosopher Hegel gives a very normative description of the state that, a state is nothing but an ‘Ethical idea’; the state is the actuality of the ethical idea, in which freedom comes into its supreme right. With the passes of time and moving towards the civilized world the Greek city-state gets a larger domain, a transition occurred from the ‘city – state’ to the ‘nation – state’ and with this change the political or social philosophy of the Greek time not only lost its supremacy, but almost ceased to be understood. With this change of temper in modern world and the individual demands of a ‘Society of Friends’, idea of cosmopolitanism, humanity welcomes various interpretations of the state and hence we have today different notions of state such as state, nation, nation-state, federal-state etc. All of them qualified all the fundamental principle, yet each of them has some specific characteristics.

Government:

While a state is a political association of human life, government is the functioning principle of that political form. Government is a system or a group of people governing an organized community, often a state.[1] In the case of its broad associative definition, government normally consists of legislature, executive, and judiciary. Government is a means by which state policies are enforced, as well as a mechanism for determining the policy. While a state stands for the social welfare or up liftmen of its citizens, the government is solely responsible towards the state and its citizens as well as they are also responsible towards the state and the government. As sovereignty is the supreme and fundamental principle of the state, where the government enjoys or exercises the supreme power. Therefore, the government is morally responsible in exercising its power otherwise it will lead towards tyranny. The state is an ethical idea which stands for the best possible human life. Accordingly the government must be based on this ethical idea and should works for the up liftmen of the society. While the state is the passive entity, government is the active body and hence responsible for the smooth functioning of the state. The art of government is governmentality, but not in the negative sense i.e. rule, dictate, dominant or exploitation rather stand for the up liftmen, progress and development. In this regard, there is a intimate relation can be draw between the state and the government yet there are many differences between them.

Some of the main differences between state and government are as follows:

1. Government is only an element of the state:

   A State has four essential elements—Population, Territory, Government and Sovereignty. Government is only one element of the State. It is just one part of the State which acts for the state.

2. Government is an Agency or Agent of the State:

   Government is an agency of the State. It acts for the state. It is that agency of the State which formulates the will of the state into laws, implements the laws of the state and ensures conformity to the laws of the state. Government exercises power and authority on behalf of the state.

3. Government is organized only by a portion of the population of State:

   The whole population is a part of the State. All the people are citizens of the State. However, government is made by the representatives of the people. Only some people, who get elected act as representatives of the people, form the government of the State. Their number is limited to few hundred only. In India around 5500 MPs and MLAs represent the total population of around 110 crores and exercise the political power at the centre and in all states of India.

4. Membership of a State is compulsory but not of Government:

   All people are citizens of the State. They together constitute the population of the State. Each one normally gets the membership (citizenship) of a state automatically right at the time of one’s birth and continues to live life as such. However, membership of the government is not automatic. No one can be forced to become its part. Anyone can voluntarily seek an election, get elected as a representative of the people and become a part of the government. Only some persons form the government.

5. Sovereignty belongs to State and not to Government:

   Sovereignty is the hallmark of the State. It belongs to the State. The government exercises power on behalf of the State. It acts on the basis of the sovereignty of the State. Sovereignty is comprehensive, absolute, unlimited and all inclusive supreme power of the State. The government exercises only well defined and limited powers.

6. Territory belongs to the State:

   The State has sovereign ownership and jurisdiction over its territory. State is a territorial entity and territory belongs to it. The government has the responsibility to preserve, protect and defend the territory of the State. The laws made by the government are applicable to all parts of the territory of State but territory belongs to the State and not to the government.

Characteristics of Government

1. Constitution– This is a major characteristic of a government. The government makes a set of agreed rules which guides it in the administration of the state.
2. Periodic Change– A government is meant to change after a specific period of time. No government is permanent, particularly a democratic or elective government which changes through periodic election.
3. Legitimacy– A government must enjoy the support of the people.
4. Revenue– The government make revenue in different ways to enhance its administration
5. Political Power– The government must posses political power which is a tool of rooting orderliness in a state.
6. Universality of Government’s reach The jurisdiction of the government must reach or extend to everyone within the state.
7. Public Institutions– The institutions comprising the government of a political society, differ from the other institutions within the society.

Functions Of Government

The government of a state owe allegiance to the state itself and its citizens as well. If a government fails to do its functions in a state, the citizens can request for the replacement of such government in as much Democracy is in practice. Below are the functions/ duties of a government on a state.

1. Law Making
2. Military defence of the country
3. Provision of employment
4. Maintenance of law and order
5. Promotion of economic growth and development
6. Maintaining good relations with other sovereign states or countries (foreign diplomacy)
7. Protection of civil liberties
8. Protection of lives and properties
9. Administration of justice
10. Formulation and implementation of policies
11. Provision of social-welfare services

Concept of Nation- State:

The idea of a nation-state is associated with the rise of the modern system of states. In an ordinary sense people often use the term state and nation as synonymous. But technically there is a difference between both the term. A state is a political organization qualified by four fundamental principles such as population, fixed territory, government and sovereignty, while a nation is more cultural than political without exercising of power (sovereignty), shares one common culture, one language and ethnicity. In short, the idea behind the nation to promotes absolute homogeneity.

UNESCO defines and underlines the basic -

The nation-state "is one where the great majority are conscious of a common identity and share the same culture".

The idea of a nation-state is more ethical than political. It is the widest organization which has the common experience necessary to found a common life. an area where the cultural boundaries match up with the political boundaries. The ideal of 'nation-state' is that the state incorporates people of a single ethnic stock and cultural traditions. However, most contemporary states are polytechnics. Thus, it can be argued that the nation-state "would exist if nearly all the members of a single nation were organised in a single state, without any other national communities being present. Although the term is widely used, no such entities exist". The nation as we think of it today is a product of the nineteenth century. In modern times nation is recognized as 'the' political community that ensures the legitimacy of the state over its territory, and transforms the state into the state of all its citizens. The notion of 'nation-state' emphasizes this new alliance between nation and state.

Philosophical aspects of Modern state:

The modern state is relatively new to human history, emerging after the Renaissance and Reformation, the era times were beginning to find fault with the old traditions, with the old language and literature, the art, the theological systems and specially the political relations of the Church and the state. As we know that the old Greek city- state was subordinated by the Church in the medieval period, and became the supreme authority. But with these two movements, the authority of the Church over the mind of man gradually weakened and the individual began to assert his intellectual independence.
Reason supplanted authority in philosophy, and the belief system began to prevail that truth is something to be won by free and impartial inquiry instead of being imposed by authority. When the medieval thinkers concentrated largely on super national things, this new age turn to its gaze from heaven to earth, human sciences’ gradually pushed its way to the front promoting temperament such as, independent, free inquiry, human liberty and so on. Finally, the conflict between the Church and the state had been settled in favor of the State. The first independent political philosopher of the modern period was Niccolo Machiavelli. According to him the power and independence of the nation are of supreme importance and not the Church
With the rise of the modern state, the whole socio-political scenario transcends to a new horizon of interpretations. It was given impetus by the throwing off of kings and the rise of efficient state bureaucracies with the believe that they could govern large groups of people impersonally. Modern state is based on the idea that the state can treat large numbers of people equally by efficient application of the law through the bureaucratic machinery of the state.

Transition from Modern State to Nation-State:

The concept of a modern nation-state is more an ideal than a reality. With the rising of the modern state, the majority of the world's people do not feel that the ruling elite in their state promotes their own national interest, but only that of the ruling party. As a result, most of the world's population does not feel their nation (cultural identity) is represented at the United Nations.
Oppressed peoples have consistently risen up in self-defense to advocate freedom of religion, speech and cultural expression. Bloody revolutions, the arduous hardship of civil disobedience, the pressure for political reform from the mass media, outside campaigns by human rights organizations, and diplomatic efforts at high levels have been responses to the mistreatment of minorities in the modern state. Checks and balances on power, representation of all, equal opportunity, and equal protection all are ideals of the modern democratic and pluralistic state. To defend all this cultural heterocities, the idea of a Nation- State stands which promotes and solely based on one cultural identity.
In the "ideal nation-state," the entire population of the territory pledges allegiance to the national culture. Thus, the population can be considered homogeneous on the state level, even if there is diversity at lower levels of social and political organization. The state not only houses the nation, but protects it and its national identity. Every member of the nation is a permanent resident of the nation-state, and no member of the nation permanently resides outside it. There are no pure nation-states, but examples that come close might include Japan and Iceland.
This ideal, which grew out of feudal states, has influenced almost all existing modern states, and they cannot be understood without reference to that model. Thus, the term nation-state traditionally has been used, imprecisely, for a state that attempts to promote a single national identity, often beginning with a single national language, government, and economic system.

Critical appraisal: There are very few geographic territories in which a single ethnic, religious, or other culturally homogeneous group resides. This has been increasingly true as a result of globalization and the dispersion of people of countless national cultures all over the world displaced as refugees from national conflicts within states. In the attempt to impose cultural homogeneity on all minority groups within a country has been one of the greatest scourges on human society, but it has taken on a particularly onerous quality in an increasingly pluralistic world. Genocides, civil wars, ethnic cleansing, and religious persecutions are rooted in the concept of creating a unified nation-state by force—a state in which a specific set of cultural norms are imposed either by the ruling elite, or by the majority.

Differences: In the light of this discussion we can draw the following differences between State and Nation-State:

1. The elements of State and Nation are different: The State has four elements— population, territory, government, and sovereignty. In the absence of even one element, a State cannot be really a State. A state is always characterized by all these four elements. On the contrary, a nation is a group of people who have a strong sense of unity and common consciousness. Common territory, common race, common religion, common language, common history, common culture and common political aspirations are the elements which help the formation of a nation, and yet none of these is an absolutely essential element. The elements which go to build a nation keep on changing.
2. Nation-state and state are distinct entities. A nation cannot be a state; India was not a state before August, 1947. A state may not always be a nation. The state is a state because of its sovereignty. The nation is not a state because it does not have sovereignty. Sovereignty is the chief characteristic of a state, whereas it is not a feature of a nation. A nation becomes a ‘nation-state’ when the nation attains statehood or sovereignty.
3. State is a Political Organization while Nation is a social, cultural, psychological, emotional and political unity: The State is a political organization which fulfills the security and welfare needs of its people. It is concerned with external human actions. It is a legal entity. On the other hand, a Nation is a united unit of population which is full of emotional, spiritual and psychological bonds. A nation has little to do with the physical needs of the people.
4. Possession of a Definite Territory is essential for the State but not for a Nation: It is essential for each State to possess a fixed territory. It is the physical element of the State. State is a territorial entity. But for a nation territory is not an essential requirement. A nation can survive even without a fixed territory. Love of a common motherland acts as a source of unity. For example, before 1948 the Jews were a nation even though they had no fixed territory of their own. When, in 1948, they secured a definite and defined territory, they established the State of Israel.
5. There can be two or more Nationalities living in one State:
   There can be two or more than two nations within a single State. Before the First World War, Austria and Hungary were one State, but two different nations. Most of the modern states are multinational states.
6. Nation is more stable than State:

   A nation is more stable than the State. When sovereignty ends, the State dies, but not the nation. A nation can survive even without sovereignty. For example, after their defeat in the World War II, both Germany and Japan lost their sovereign statuses and outside powers began to control them. They ceased to exist as States. But as nations they continued to live as nations, which after some months regained their sovereign statuses and became sovereign independent states.

7. A State can be created while a Nation is always the result of evolution: A State can be created with the conscious endeavors of the people. Physical elements play an important role in the birth of a State. For example, after the Second World War, Germany got divided into two separate states West Germany and East Germany. But Germans remained emotionally as one nation. Ultimately in Oct., 1990 the Germans again got united into a single state. In 1947 Pakistan was created out of India as a separate State. A nation is a unity of the people which emerges slowly and steadily. No special efforts go into the making of a nation.

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