1.

PROCESS OF CONFIGURATION OF THE

CONSTITUCIONAL STATE

LESSON 1. THE STATE: PROCESS OF FORMATION, CONCEPT AND

ELEMENTS

THE PROCESS OF FORMATION OF THE MODERN STATE

The State is a territorial society, organized according to law and endowed with
sovereign power
PROCESS OF FORMATION: EVOLUTION
In the Middle Ages the existence of social organizations that could be conceived as a
state could not be predicated, since the actual system prevented the concentration of
power in a single nerve centre. It is during the Modern Age, when the State appears, a
term that Machiavelli introduces to refer to the Renaissance political organization. Also,
the bureaucracy appeared, a kind of administrative organization, due to the support of
the bourgeoisie to the Monarch, increasing his power. We enter the stage of the absolute
monarchies which are characterized by an attempt to unify the legal system.
This absolute character of the monarchy is projected throughout the fifteenth to
nineteenth centuries, including a stage of state evolution:
 Absolutist monarchical state strito sensu: Louis XIV
 State of illustrated despotism (S.XVIII)
 The liberal state of law: characterized by a control of powers, submission of the
King to the norm and the appearance of the recognition of the rights of man and
of the citizen (Declaration of the French revolution 1879)
 The demo liberal state: the democratic and social state (interwar period): There
appeared mechanisms of semi-direct democracy within the representative
democracy that protects the social, cultural and political minorities.

CONCEPT AND ELEMENTS OF THE STATE

 PEOPLE
 TERRITORY (Heller & Jellinek)
There is not a territory (with political effects) without a people on which the action of
the public power falls (Heller).
 POWER
Power depend consent and the citizen´s awareness that what is commanded is right for
the common interest. When it is based only on force, this power lacks the element of
citizen´s consent, as in dictates.
There is another element introduced by Bodino (middle XVI century):
 SOVEREIGNTY
A power is sovereign when it is absolute, perpetual, original, invisible and inalienable,
which ratifies the desires of a monarch that, needs to justify the use of his power.
There are eight fundamental aspects that reveal whether a State is sovereign or not: the
right to coin money, to make war, to sign the peace or to create new taxation, are
faithful exponents preached by the one who enjoys the right to legislate. He makes a
difference between ius (derecho) and lex (ley).
Sieyès:overeignty reside in the nation. Census suffrage is advocated (subject to
economic and class constraints)
Rousseau: sovereignty resides in the people, reason why the suffrage must be
universal.
THE CURRENT CONCEPT OF SOVEREIGNTY
At the present time the confrontation between national and popular sovereignty can be
considered overtaken by the universal admission of suffrage as a right, which makes it
universal.
This can be seen even in the Constitution of 1978 in which the Preamble refers to the
nation as subject of sovereignty, although in Article 1.2 (more important than the
Preamble) of the Spanish Constitution that established that sovereignty resides in the
Spanish people.
THE ABSOLUTE STATE MONARCHIC
Until the Modern Age, the State does not appear as a form of corporate organization.
AUTHORS:
 MAQUIAVELO: first use of State in his book ¨The prince¨ .
“The end justifies the means”: it is the beginning of “the reason of State”, title of
the work that Botero will write at the end of XVI century.
He distinguishes the virtuous rulers, those who are always attentive to the
solution of the possible problems, and those who are fortunate, because greater
the “virtue”, the less the “fortune” and the greater possibility of remaining in
power, since the situation will be more under control.
 BODINNO
 HOBBES: justifies the absolute State that appears as the result of a social
contract by which all people renounce their personal rights in order that the State
guarantees safety.
The is a struggle between the concepts of freedom and security.
These are the maximum theoreticians of the absolutist State.

SPANISH AUTHORS:
Francisco de Vitoria (the power of the king under the interest and the divine law)
Suarez differentiated the power which came from God, and the power that God gave to
the monarch through a pact.
Mariana even allowed the tyrannicide for opposing the divine law

LESSON 2. BIRTH AND EVOLUTION OF THE CONSTITUTIONAL SYSTEM

THE BIRTH OF THE LIBERAL STATE

The liberal state appears as the legal-political expression of bourgeois triumph. The
liberal state is configured as a class state, constitutional and codifier of right, which also
submits to power, and which supposes the beginning of the responsibility and
interdiction of the arbitrariness of public powers.
All this within a liberal vision of considering the State as a lesser evil, a gendarme that
acts creating minimal social conditions within which the individual must be realized as
such, also falsifying a representative system that is realized through a census suffrage
which continued to exclude the popular classes, as we were it with national sovereignty.
Rule of law (estado de derecho) (Rechstaat) is the legal concreteness of the liberal State
(Von Mohl s.XIX)
CHARACTERISTICS OF THE RULE OF LAW
 The law is configured as the expression of the general will, so the policy-making
body enjoys the political primacy: It is the “rule of law”
 In order to ensure legal certainty, a hierarchical system of rules is established.
 Control and separation of powers to prevent a despotic exercise of them
 The rights “of the man and the citizen” are thus recognized, protecting the rights
and freedoms of the person, both in their private and public spheres.
 The administration is subject to the principle of legality.
 At a later stage appears the control of constitutionality of the laws, to avoid that
constituted powers take over the decisions of the constituent power and to
consolidate a system without fissures.
* In USA, they have a diffuse constitutionality control. In European continental law, the
have a concentrated constitutional system (institutional court) *
*Hierarchical system of Spain: Judicial power: General council justice power (ordinary
justice):
1. Ordinary justice (supreme court, general court, ordinary court)
2. Constitutional justice: constitutional court
 Public freedom and human rights
 Constitution is respected
 Conflict of duties
LIBERAL STATE AUTHORS
ALEXIS TOCQUEVILLE
Liberalism theories: Locke and Montesquieu
 LOCKE: “Two treaties on government”
In the first treaty, he justifies liberalism by attacking the theses that defend
absolutism.
In the second treaty, he proposed a new coexistence model based on a new civil
government.
Before the emergence of society, man was in a state of nature. It is for this
reason that the State must appear, which is responsible for enforcing the laws
because it has sufficient power to do so. This would arise through a limited
social pact for not granting a total general transfer of the rights of the individual
to the Monarch. Now the subjects will be considered as citizens.
 MONTESQUIEU: “The spirits of laws (XXVIII century)
The monarchy or the republic are conceptualized as moderate regimes against
the tyranny, that is not.
He also establishes the classis triple division of powers between the legislative,
executive, and judicial.
It is necessary that “so that power cannot be abused (…), the power restrains to
the power.”
EVOLUTION FROM LIBERAL STATE TO SOCIAL AND
DEMOCRATIC CONSTITUTIONAL STATE. EVOLUTION OF THE
STATE IN PRESENT DAYS
TOWARDS A NEW VISION OF THE SEPARATION OF POWERS
From the Article XVI of the Declaration of the man and the citizen the separation of
powers has become as essential aspect of the recognition of a Constitutional democratic
state.
Given the predominance of the relational aspect of the separator, the doctrine
distinguishes presidential and parliamentary regimes, without forgetting the directorial
or assembly regimes in which the Assembly theoretically continues to mark the country
designs while the member of the Executive are simply leaders who perform what the
House orders.
 PRESIDENTIAL REGIMES: characterized by a strict separation of powers
and functions with an Executive and Legislative that enjoy the same legitimacy
since both, directly and indirectly, are elected by the people.
Presidential and semi-presidential: elections for president.
Presidential system the president has a lot of power, in the semi-presidential
system the president has a lot of power shared with…
*Vote for president* * ALWAYS REPUBLIC*
 PARLIAMENTARY SYSTEMS: the relationship between the Government
and Parliament is the essential feature of the parliamentary system.
 *Vote for parliament, then a prime minister is selected*
*Parliamentary monarchy: Spain, UK, Norway, Netherlands*
*Parliamentary republic: Italy, Germany*
*representation and royal power*
*Parliamentary elections but in the parliamentary republic you don´t vote for
president, and in the parliamentary monarchy you have parliamentary elections
as in Spain, but you don´t vote for the president directly. *
The president has representation, but the ones ruling are the prime ministers.
*USA, Mexico, Argentina, Brazil, etc. are presidential system. The all have a
president who is, at the same time, head of the state and head of the
government*

To sum up: according to the relationship between the Executive and Legislative powers,
we are facing systems of one type or another. The theory of the separation of powers
admits exceptions to ensure that the ends of the State are fulfilled.
In this sense, Löwestein will speak of a series of intra and extra organic controls that are
always temporary, spatial and international, which bring to power a series of
relationships and collaborations that make this theory to be restructured and adapted to
reality of a world that does not move within a social context as simple as that is
established by liberal reductionism.

THE DEMOCRATIC AND SOCIAL STATE OF LAW

The liberal state is going to undergo a series of economic, social and political
transformations that make it advance towards a democratic system.
Political transformations such as popular sovereignty are achieved.
The recognition of political, minority or symbolic pluralism.
The incorporation of elements of direct democracy.
The constitutionality of so-called social rights.
In addition, the social state bets on state intervention in economic matters, also
dissolving the liberal confrontation between state and civil society acting as a
redistributor of income through progressive taxation systems.
All these aspects are observed in the Spanish Constitution of 1978.

POLITICAL THEORY OF THE DEMOCRACY

Rousseau “The social contract” and “The Emilio”
From natural state to social contract: from natural rights to civil rights.
The social contract creates a state and a power that will be linked by the achievement of
the dictates and the general will.
The general will (which reflects the interests of society) is expressed through the law,
which must be elaborated by the people themselves.
The general will be never wrong. The individual is free to obey the law.
Rousseau tries to achieve freedom but also equality.
*CONSTITUTION 1978: MAIN POINTS, CHARACTERISTICS, INSTITUTIONS,
ETC*

CONSTITUTION
PRELIMINARY PART
ARTICLE 1 (sovereignty rests with the citizens)
1. Spain is hereby established as a social and democratic State, subject to the rule
of law, which advocates as the highest values of its legal order, liberty, justice,
equality and political pluralism.
2. National sovereignty is vested in the Spanish people, from whom emanate the
powers of the State.
3. The political form of the Spanish State is that of a parliamentary monarchy.
ARTICLE 2 (unity of the nation and the right to autonomy)
The Constitution is based on the indissoluble unity of the Spanish nation, the common
and indivisible country of all Spaniards; it recognises and guarantees the right to
autonomy of the nationalities and regions of which it is composed, and the solidarity
amongst them all.
ARTICLE 3 (castilian and the other spanish languages)
1. Castilian is the official Spanish language of the State. All Spaniards have the
duty to know it and the right to use it.
2. The other Spanish languages shall also be official in the respective Autonomous
Communities in accordance with their Statutes.
3. The wealth of the different language modalities of Spain is a cultural heritage
which shall be the object of special respect and protection.
ARTICLE 4 (the spanish flag and those of the autonomous communities)
1. The flag of Spain consists of three horizontal stripes: red, yellow and red, the
yellow stripe being double the width of each red stripe.
2. The Statutes may recognise flags and ensigns of the Autonomous Communities.
These shall be used together with the flag of Spain on their public buildings and
in their official ceremonies.
PART X: CONSTITUTIONAL AMENDMENT (REVISION)
ARTICLE 167 (CONSTITUTIONAL AMENDMENT) *partial or part not rigid,
parts without a special protection, flexible*
 1. Bills on Constitutional amendment must be approved by a majority of three-
fifths of the members of each House. If there is no agreement between the
Houses, an effort to reach it shall be made by setting up a Joint Commission of
Deputies and Senators which shall submit a text to be voted on by the Congress
and the Senate.
2. If approval is not obtained by means of the procedure outlined in the foregoing
clause and provided that the text has been passed by an absolute majority of the
members of the Senate, Congress may pass the amendment by a two-thirds vote
in favour.
3. Once the amendment has been passed by the Cortes Generales, it shall be submitted
to ratification by referendum, if so, requested by one tenth of the members of either
House within fifteen days after its passage.
ARTICLE 168 (ESENTIAL REFORMS TO THE CONSTITUTION) *total
revision or non flexible parts*
1. If a total revision of the Constitution is proposed, or a partial revision thereof,
affecting the Preliminary Title, Chapter Two, Section 1 of Title I, or Title II, the
principle shall be approved by a two-thirds majority of the members of each House, and
the Cortes shall immediately be dissolved.
2. The Houses elected must ratify the decision and proceed to examine the new
Constitutional text, which must be approved by a two-thirds majority of the members of
both Houses.
3. Once the amendment has been passed by the Cortes Generales, it shall be submitted
to ratification by referendum.