Forms of State and Government: Essential Features and Evolution

Forms of State and Government

The main (essential) features of the State

• originality (independency) of its legitimacy/source of power;
• territoriality: the laws and regulations issued by the State apply (and relate) to the interests of the
  community established within the boundaries of the territory of the State (based on a territory);
• preeminence: the State must be supported by an apparatus enabling to enforce laws and
  regulations and to make them applicable irrespective of the citizens' will;
• general aims pursued by the State.

The "forms" of State
The State may have different forms, depending on the historical context. In particular, depending
on the form of State which is considered, the forms of participation by citizens in public
administration may be different.

Some of the main forms of State which appeared during the historical evolution of State:

1. Feudal state (society):
   - There is no clear distinction between public and private law (still unknown);
   - The political power is scattered and fragmented among various local "authorities", which do
   not necessarily have a connection with one another.
   - The territory is "owned" by the sovereign (and the various feudal entities), which does not
   consider public interest as the ground for its own legitimacy and does not feel to be required
   to take care of the interests of the community.
2. Absolutism
   - It arose in order to "react" to the fragmentation of powers which took place during feudalism.
   - The monarch has absolute power over people and territory, and has monopole over
   sovereignty.
3. "Police" State
   - the State exercises repressive control of political, economic and social life, usually by an
   arbitrary exercise of power by means of the police, rather than by the regular operation of
   administrative and judicial procedures.
   - On the other hand, the State holds a "paternalistic" behavior and assumes to be under the
   duty to take care of citizens' individual wealth and welfare.
4. "Modern" State (rule of law):
   - At the end of the 18th century, the middle class rises to power.
   - It is based on formal equality and the duty to protect fundamental rights and freedoms.
   - The authority is based on the consent of citizens and said principles are set out in written
   constitutions or charters.
5. Socialist State:
   - developed after World War I, this form of State is based on the Marxist-Leninist doctrine and
   is based on the State ownership of the means of production.
   - This ends up with a significant limitation of individual ownership rights (and, more generally,
   of the freedom of trade).
   - Historical examples: the People's Republic of China, the Soviet Union and North Korea.
6. Authoritarian state (authoritarianism):
   - It attaches great importance to national identity, but it considers the community as politically
   unable to govern itself: charismatic leaders are then deemed as necessary to represent and
   guide the political community.
7. Welfare State:
   - World war II marks the transition from the modern State to the welfare State.
   - The latter is based on the importance attached to the action of public authorities, promoting
   the citizens' well-being through a widespread participation to economic and social activities
   and in the field of social protection.
   - Unlike the police State, the welfare State tends to solicit the participation and consent by the
   members of the community.
   - Its primary purpose is to ensure a more equitable distribution of income.

Centralised and Decentralised Forms of State

Since it depends on historical and political factors, centralised States tend to evolve into
decentralized States.. Centralised States is a typical form of State during the 19th century and the 1st decades of the
20th century, in which the fundamental powers are exercised by organs of the State (as
opposed to peripheral entities)
. Decentralized States, in which pre-existing local authorities are guaranteed and recognized,
and, furthermore, are granted legislative and administrative powers to local or territorial entities
in certain fields (the dispute-settlement function still tends to be included within the exclusive
competence of the central State). Decentralisation can have several degrees of intensity, from a
maximum (federal States) to a minimum (States granting restricted fields of autonomy to local
authorities).

• Institutional decentralisation: administrative functions are distributed among central and
  peripheral authorities (i.e., from a public entity to another). Local or territorial entities are only
  granted with administrative functions as well as with decision-making power on policy areas
  impacting on the local communities;
• Bureaucratic decentralisation: part of the sovereign functions and the related decision-
  making powers are transferred within the scope of 1 single entity (e.g. from a branch to
  another branch of the same entity);
• Self-government: peripheral authorities are comprised of representatives elected by
  members of the local communities.

Decentralisation in the Italian Constitution

One the one hand, the Italian Constitution declares and confirms the unity of State (Article 5 of the
Italian Constitution: "The Republic is a single and indivisible entity"), while, on the other, it requires
the legislator (i.e., the ensemble of entities and bodies entitled to exercise the legislative power,
namely the Parliament, the Government and, to a certain extent, the Regions) not only to
recognize and promote local autonomies (i.e. institutional decentralisation), but also to implement,
in the context of the public-interest services, an administrative decentralisation (i.e., bureaucratic
decentralization - Article 119: Financial powers and duties of the Regions).
Significant obstacles have been raised to the implementation of this provision. In 2001, a new
legal system was created to recognize and govern the powers granted to territorial entities (in
particular, Regions) (modified Article 117: State's powers; common powers; Regions' powers)

Unions of States

A plurality of States may create a Union, by giving rise to structures and bodies entitled to
exercise functions and powers vis-à-vis the members. In such case, States may want to retain
part of their sovereign powers, but significant powers may be also afforded (concessi) to the
bodies representing the Union. Such powers may be specifically held as legally binding on
member States (in other words, the legal order of each member should not allow for any conflict
with decisions made at the Union level).
Typical examples of unions of States are, amongst others, the UNO (United Nations Organisation)
and the Council of Europe. These are supranational organizations, contemplating a partial
limitation of sovereignty of the member States. Such limitations may also entail the direct effect of
certain acts issued by the bodies representing the organizations within the domestic legal
systems (without the need, for member States, to implement the decisions issued by the
supranational bodies).

Example: the UNO Charter

Example of provisions of the UNO Charter:

• Art. 41: "The Security Council may decide what measures not involving the use of armed force
  are to be employed to give effect to its decisions, and it may call upon the Members of the
  United Nations to apply such measures. These may include complete or partial interruption of
  economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of
  communication, and the severance of diplomatic relations"
• Art. 42: "Should the Security Council consider that measures provided for in Article 41 would be
  inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces
  as may be necessary to maintain or restore international peace and security. Such action may
  include demonstrations, blockade, and other operations by air, sea, or land forces of Members
  of the United Nations"

International Organization: European Union

An international organization is commonly defined as "a body that promotes voluntary
cooperation and coordination between or among its members". There are many types of
international organizations, such as intergovernmental and supranational organizations.
The European Union is partly intergovernmental and partly a supranational organization.

• With respect to supranational elements, many aspects of the EU policy involve economic and
  political integration policy (but also social policy, immigration policy and education): as far as
  these aspects are concerned, the policies adopted by each member State automatically
  conforms to the principles enacted at the EU level.
• On the other hand, with respect to the intergovernmental elements of the EU, all Member States
  typically co-operate to formulate common foreign policy and security policy: in these areas,
  Members States retain their authority and autonomy and, dissenting States may choose to
  pursue its own policy (even in conflict with the line adopted by the majority).

Confederations of States

Confederations of States are a particular kind of Union, created by virtue of an international treaty.
Most frequently, neighbouring States which retain their sovereignty. The phenomenon giving rise
to a confederation may be either "upstream" or "downstream", depending on the initiative to
create the Confederation being taken by the States (getting together and creating the
supranational structure) or by the central State (allowing for an increasing decentralization, leading
to the creation of independent member States, although belonging to the Confederation: in such
case, a unitary State evolves into a Confederation). Typically, States take part in a Confederation
in order to better ensure the means for their own military defence and to ensure an appropriate
degree of freedom of trade. Confederations usually contemplate common institutions and bodies,
the most important of which is the Federal Assembly (comprised of representatives of the various
member States) exercising legislative powers within the limits and under the conditions set forth
by the treaty.

Constitutional Elements of States

States (in order to be recognized as such) must meet 3 fundamental conditions (main elements):

1. Territory
2. People
3. Sovereignty

Territory

It is a particular type of land that is recognized as belonging to a community or people, and
identified, mapped and organized in a particular way by the government (State), so that
sovereignty (authority) can be exercised over it. Territory may be important to establish the
application scope of laws and regulations enacted by the State.
-> Ex: according to the Italian Banking Act, Italian law regulating banking activities apply to all
such activities performed within the Italian territory.

• It includes the surface of the land, the soil beneath the surface, lakes and rivers within the State
  borders, waters connected to boundary rivers, air space falling within the surface of the State
  and the maritime area of the territorial sea. State boundaries can be both natural and artificial,
  depending on the availability of any natural elements aiding to identify the territorial borders.
  Borders, however, are mostly connected to historical and political factors.
• The Italian Criminal Code and international law confirm the essentiality of the territory as an
  element of the State. In particular, Article 241 of the Italian Criminal Code includes, among the
  crimes against the State, the "use of force against its territorial integrity". In addition, a principle
  of international law states that, in case of total or partial military occupation of territory by the
  enemy, the State still continues to exist (as a legal entity) as long as the war is ongoing. Such
  principles further confirm that territory is generally held as a fundamental element of States.

In addition, 2 "figures" are closely linked to the territory:

• Extraterritoriality: On certain conditions, the law of a State may been forced and applied to
  acts put in place outside the State territory. Such situations are usually connected, for
  example, to facts occurring on board of vessels or airplanes (irrespective of the place where
  they are, at the time when the act is done). In particular, according to article 4, paragraph 2 of
  the Italian criminal law, Italian vessels, ships and airplanes are always subject to Italian law,