The Nation-State

The Nation and the State

State Nation

Political expression of a nation Considered an expression of the state’s identity

is a community of persons, more or less Refers to a large group whose members believe
numerous, occupying a definite territory, they belong together on the basis of a shared
possessing an organized government and identity as a people.
enjoying independence from external control.

Involves machinery, agencies, jurisdictions, power This shared identity allows them to imagine
and rights and is a network of systematic themselves as belonging to a national community.
relationships.
Product of two forces: 1) The need to have
cohesion & 2) The individual member’s desire to
belong.
Nation(s)
• An aggregation of people
• An organized society
• Inhabiting a distinct portion of the earth
• Similar: (a) language, (b) customs, (c) tradition and
historic continuity
• Distinguished from other groups by their racial origins
and characteristics
• Generally, but not necessarily, living under the same
government and sovereignty.
State
• A political concept w/ four (4) elements:
• People
• Territory
• Government
• Sovereignty
 State
• People
• Entire body of citizens of a state invested with political power for political purpose
• w/o people there can be no functionaries to govern and subjects to be governed
• Should be neither too small nor too large
• Citizenship to a state is a privilege
• Duty of allegiance on the part of the citizen and duty of protection on the part of the society
• This can be an absolute arrangement or a temporary one. E.g. Japanese Occupation
Territory
• A geographical area under the jurisdiction of a country or sovereign
power or state
• A fixed territory which inhabitants occupy
• States must have a territory sufficient in extent to provide for its
maintenance and growth
• No actual size requirement, must only be sufficient to provide the
natural resources necessary for its people’s existence.
Four Types of Territories
• Aerial (air space within the expanse of maritime and/or terrestrial
territory)
• Terrestrial (land mass)
• Maritime ( 12 nautical miles away from the shores of the outermost
islands)
• Fluvial (bodies of water located w/in the terrestrial domains)
Government
-it is the totality of authorities w/c rule a society by prescribing &
carrying out fundamental rules w/c regulate the freedom of its
members.
-it is entrusted & devolved with executive, legislative, judicial &
administrative functions of the state.
Kinds of Government
• De Jure or Legitimate gov’t.
• Established according to the constitution of the nation & is lawfully entitled to
recognition & supremacy & administration of the nation
• A government deemed lawful or rightful but which was supplanted
• E.g. the Commonwealth government
• De Facto Government
• Often considered as an illegitimate government
• Maintains itself by a display of force against the will of the
rightful legal government
• It is successful, temporarily, in overturning the institutions
of the rightful legal gov’t by setting its own in lieu thereof.

3 kinds of de facto governments

1. Government by Revolution
2. Government by Secession
3. Government by Occupation
• Testing to determine the status of the government:
Corazon Aquino vs Gloria Macapagal Arroyo

• Remember that if a government is established in

accordance w/the constitution then it is de jure. If not
(especially if it grabbed power from the legitimate
government) then it is de facto.
Sovereignty
• It is the supreme, absolute and uncontrollable power by which an
independent state is governed.
• Paramount control of the constitution & the frame of government &
its administration.

TWO TYPES OF SOVEREIGNTY

1) Internal
2) External
1.) Internal Sovereignty
-the power to control & direct the internal affairs of
the country such as the authority to enact, execute &
apply laws.

2.) External Sovereignty

-The power of an independent state to control and
direct its external affairs such as the authority to enter
into treaties with other states, to wage war, and to
receive & send diplomatic missions.
 Acts of Government & Act of State
Doctrine
• Acts of Government
• Government is a mere agent of the state. The Powers and rights of a state are exercised
& its will is realized through its instrumentality, the government.
• Acts of the government done within the boundary of its power as agent are considered
acts of the state as principal
• However, acts of government that are inconsistent, prejudicial, or contradictory to the
interest or general welfare of the people are not acts of the state.
• Acts of State Doctrine
• An act done by a sovereign power of a state, or by its delegate (government), within
the limits of the power vested in him cannot be questioned or made the subject of
legal proceeding in a court of law.
• The judicially created act of state doctrine precludes the courts from inquiring into
the validity of governmental acts of a recognized foreign sovereign committed w/in
its own territory.
• The exercise of: (1) police power, (2) power of
eminent domain, (3) power of taxation, (4) legislative,
(4) executive & (5) judicial powers, (6) power to
extend recognition to newly installed foreign
government, (7) power to deport alien etc. are acts of
state which cannot be questioned as invalid, null and
void, unreasonable or oppressive in a foreign state.
• State Continuity Doctrine
• Once a state comes into existence, it continues despite
changes in its circumstances as long as the four elements
of the state are still present.
• A state remains the same international person despite the
change of government or head of government, its rank or
title.
• The government, the instrumentality through which the
state functions may change from time to time in form or in
personnel, but the personality of the state continues.
Rights of the State
1.) Right of Existence & Self-Defense- right to use force against an
aggressor state.
2.) Right of Independence-right to be free from dependence, dictation,
subjection, control & intervention of another state or exterior power.
3.) Right of equality-an inherent right of a state. Though unequal in a
lot of aspects, states are equals in terms of stature as international
persons.
4.) Right of Legation- It is the right of the state to enter
into a diplomatic relation or intercourse with other
states by receiving and sending diplomatic corps or
representatives.

STATE AS PARENT OF THE COUNTRY (Parens Patriae)—

refers to the traditional role of the state as a
sovereign & guardian of persons under legal disability
such as minors and/or the insane.

Under this principle, the state must care for those who
cannot care for themselves.
• The Inherent Powers of the State:
1.) Police Power
2.) Eminent Domain
3.) Power of Taxation
• POLICE POWER
• It is the sovereign power to promote and protect the
general welfare.
• It is the most pervasive and the least limitable of the three
powers of the state, the most essential, consistent and
illimitable which enables the State to prohibit all hurtful
things to the comfort, safety and welfare of the society.
• It also refers to the power vested in the legislature by the
Constitution to make, ordain, establish all manner of
wholesome and reasonable laws, statutes, or ordinances,
either with penalties, or without, nor repugnant to the
constitution, as they shall be judge to be for the good and
welfare of the state and the subjects.
• Police power is an inherent attribute of sovereignty. It
can exist even without reservation in the constitution.
It is based on necessity as without it, there can be no
effective government.
• It is also referred to as the law of overwhelming
necessity.

• What is the basis of the exercise of the police power

of the state?
• The exercise of police power is founded on the basic
principles of salus populi est suprema lex (the welfare of
the people is the supreme law) and sic utere tu et alienum
non laedas (so use your property so as not to impair
another)
• Who has the ultimate power to determine the
necessity and the means of exercising the police
power of the state?
• Congress has the ultimate power, because it is the judge of
necessity, adequacy, reasonableness and wisdom of any
law. The congress is the constitutional repository of police
power and exercise the prerogative of determining the
policy of the state.

• Limitations in the exercise of Police power

• Due process clause
• Equal protection clause
• The basic purposes of Police Power are:
• To serve the general welfare, comfort and convenience of
the people;
• To promote and preserve public health;
• To promote and protect public safety;
• To maintain and safeguard public order;
• To protect public morals; and
• To promote the economic security of the people.
• POWER OF EMINENT DOMAIN
• It is an inherent power of the state that enables it to
forcibly acquire private property, which is intended for
public use, upon the payment of just compensation.* It is
based on political necessity; it is inseparable from the state
unless it is denied to it by its fundamental law.
• Condemnation of private property is justified only if it is for
the public good character. It is the courts of law that have
the power to determine whether there is necessity
therefore.

*Just compensation is the full and fair equivalent of the property

taken from the private owner by the expropriator. The measure
of this compensation is not the taker’s gain but the owner’s loss.
• Also called the power of expropriation, eminent
domain is described as the “highest and most exact
idea of property remaining in the government” that
may be acquired for some public purpose through a
method “in the nature of a compulsory sale to the
state”.

• Who may exercise the Power of Eminent domain?

• The Congress
• The President
• The local legislative bodies
• Certain public corporations (e.g. Land Authority and the
MWSS)
• Quasi-public corporations (e.g. PLDT and Meralco)
• What are the requisites in exercising the power of
eminent domain?
• The property taken must be private property;
• The taking must be within constitutional sense;
• The taking must be for public use
• Just compensation must be paid;
• There must be due process of law.

• The following essential requisites must concur before an

LGU can exercise the power of eminent domain:
• An ordinance is enacted by the local legislative council
authorizing the local chief executive to exercise the power of
eminent domain;
• It is exercised for the public use, purpose and welfare;
• There must be payment of just compensation; and
• A valid and definite offer has been previously made to the
owner of the property south to be expropriated.
• POWER OF TAXATION
• It is the inherent power of the state to raise revenues to
defray the expenses of the government or for any public
purpose. This can be done through the imposition of
burdens or imposition on persons, properties, services,
occupations or transactions.

• The importance of taxation derives from the unavoidable

obligation of the government to protect the people and
extend them benefits in the form of public projects and
services. Taxation is based on necessity and the reciprocal
duties of protection and support between the state and
those that are subject to its authority.
• Who may exercise the power of taxation?
• It is the Congress who exercises the plenary power to tax.
However, it may be delegated by congress to local government
units under such terms and conditions as may prescribed by
law.

• The following are the requisites or limitations on the

power to tax:
• Public purpose;
• Territoriality;
• Uniformity;
• Due process and equal protection clause;
• Constitutionally exempt properties cannot be taxed;
• In the assessment and collection of certain kinds of taxes,
notice and opportunity for hearing must be provided.