1. Concepts of State
Origin & Elements

2. On the Origin of States

3. Theories on the Origin of States
Divine Right Theory
Social Contract/Compact Theory
Necessity or Force Theory
Paternalistic Theory
Natural Theory
Instinctive Theory
Economic Theory
There are several theories on the origin of states, but we shall be discussing some of the more popular theories.

4. Divine Right Theory
Let every person be subject to the governing authorities. For there is no authority except from God, and those that exist have been instituted by God. Therefore he who resists the authorities resists what God has appointed, and those who resist will incur judgment.
(Roman 13:1-6, Holy Bible)

5. State was created by God.
The authority to govern the people was ordained by God upon rulers who were regarded as of divine descent.
A ruler’s divine appointment legitimated the ruler’s rule. The ruler’s exercise of power cannot be questioned for to challenge the ruler was to challenge God’s authority.
The ruler was subject to judgment only by God, not by his subjects or by any agency.

6. Social Contract Theory
Early states must have been formed by deliberate & voluntary compact among the people to form a society & organize government for their common good.
The ruling authority was established because of political compact where the people would render obedience to the government taken into account an upright ruler.
The people had the right to desist from rendering obedience when the government refrains from governing the society justly.
The people has the right to resist and the right to revolt when the government oppresses them.

7. Variations of the Social Contract Theory
Thomas Hobbes
Viewed man in a “state of nature” as despicable, nasty and brutish, likened to jungle life where the stronger animals prey on the weaker ones.
Hence, man’s desire for self-preservation, order & peace could be attained only if they surrendered all their natural rights & submitted their will to an absolute sovereign monarch.
Hobbes believed that man by nature is a violent man. Man cannot control his tendencies to dominate other weaker man, in order to survive.
The Hobbesian version of the Social Contract Theory, advocated for a monarchial form of government. In one of his works, the Leviathan, he posited the idea that in order to preserve the peace and give security to the people, the people must surrender all their natural rights to an absolute sovereign monarch. So absolute was the monarch that the people had no right to revolt.

8. John Locke
Men are rational beings & could make use of natural law for their own good.
Men needed the state to maintain peace & order, provide them with essential services, & settle their quarrels and conflicts.
As a result, men voluntarily consented, they created the state for the purpose of promoting & preserving their natural rights to life liberty & property.

9. Force Theory Might makes right.
Only force rules. Force is the first law. – A. Hitler
The state came into existence out of conquest, force or coercion.
Before the state existed, there were always men strong enough to assert their leadership and power through force, conquest or violence.
They subjected the people & compelled them to obey their laws.

10. On the Elements of State

11. State vs. Nation It is a political concept.
Not subject to external control.
A single state may consist of one or more nations or peoples.
It is an ethnic concept.
May or may not be independent of external control.
A single nation may be made up of several states.
A nation is a group of people bound together by certain characteristics such as common social origin, language, customs, and traditions, and who believe that they are one and distinct from others. More strictly synonymous with people.
Example is the United States, which has become a melting pot of various nationalities. The best example for a single nation making up several states is the Arab nations, which is politically divided into many sovereign states.

12. State: Defined Community of persons, more or less numerous,
Permanently occupying a fixed territory,
And possessed of an independent government
Organized for political ends to which the great body of inhabitants render habitual obedience.

13. Essential Elements of a State
People
Territory
Government
Sovereignty

14. People
Inhabitants of the State, the number of which is capable for self- sufficiency and self-defense and of both sexes.
With regards to the number, it is generally agreed that they must be numerous enough to be self-sufficing and to defend themselves & small enough to be easily administered and sustained.

15. Territory
It is the fixed portion of the surface of the earth inhabited by the people of the State.
Terrestrial Domain
Maritime Domain
Fluvial Domain
Aerial Domain
As a practical requirement only, it must be neither too big as to be difficult to administer and defend nor too small as to be unable to provide for the needs of the population.

16. Government
The agency or instrumentality through which the will of the State is formulated, expressed and realized.
Functions
Constituent – it constitutes the very bonds of society and are therefore compulsory.
Ministrant – those undertaken to advance the general interests of society.
In this jurisdiction, the traditional classification of governmental functions is not relevant.
All functions which were traditionally regarded as merely ministrant & optional have been made compulsory by the Constitution.
Government exists for the benefit of the people governed. It is necessary for the protection of society and its members, the security of persons and property, the administration of justice, the preservation of the state from external danger, and the advancement of the physical, economic, social and cultural well-being of the people.
Without an organized structure of government, anarchy and disorder, and a general feeling of fear and insecurity will prevail in society.

17. Forms of Government
As to number of persons exercising sovereign powers
Monarchy
Absolute
Limited
Aristocracy
Democracy
Direct or Pure
Indirect, representative or republican
As to extent of powers exercised by the central or national government
Unitary
Federal
As to relationship between the executive and the legislative branches of the government
Parliamentary
Presidential
There is no particular form of government prescribed, provided only that the government is able to represent that state in its dealings with other states.

18. De Jure & De Facto Governments
De jure – has a rightful title but no power or control, either because the same has been withdrawn from it or because it has not yet actually entered into the exercise thereof
De facto – actually exercises power or control but without the legal title.
De facto proper – government that gets possession & control of, or usurps, by force or by the voice of the majority, the rightful legal government and maintains itself against the will of the latter;
Government of paramount force – established & maintained by military forces who invade & occupy a territory of the enemy in the course of war; and
Independent government – established by the inhabitants of the country who rise against the parent state.

19. Doctrine of Parens Patriae
The government as guardian of the rights of people may initiate legal actions for and in behalf of particular individual.
(Gov’t. of Philippine Islands vs. El Monte de Piedad, L-9959, December 13, 1916)

20. Sovereignty
It is the supreme & uncontrollable power inherent in a State by which that State is governed.
Kinds
Legal – the authority which has the power to issue final commands.
Political – the power behind the legal sovereign, or the sum of the influences that operate upon it.
Internal – the power of the state to control its domestic affairs.
External – the power of the State to direct its relations with other States [Independence].
In our country, the Congress is the legal sovereign, while the different sectors that mold public opinion make up the political sovereign.

21. Characteristics of Sovereignty
Permanent
Exclusive
Comprehensive
Absolute
Indivisible
Inalienable
Imprescriptible

22. Act of State
An act done by the sovereign power of a country, or by its delegate, within the limits of the power vested in him.
An act of State done by the political departments of the government and not subject to judicial review.
It cannot be questioned or made the subject of legal proceedings in a court of law.

23. Royal Prerogative of Dishonesty
Article XVI, Sec. 3 – The State may not be sued without its consent.
Basis:
Indiscriminate suits against the State will result in the impairment of its dignity.
“There can be no legal right against the authority which makes the law on which the right depends.” – J. Holmes
The demands & inconveniences of litigation will divert the time & resources of the State from the more pressing matters demanding its attention, to the prejudice of the public welfare.
It is a mere recognition of the sovereign character of the State & an express affirmation of the unwritten rule insulating it from the jurisdiction of the courts of justice.
2. Actions are rarely instituted directly against the Republic of the Philippines. The usual practice is to file such claims not against the State itself, but against the officer of the government who is supposed to discharge the responsibility or grant the redress demanded.
3. The test is whether

24. Determining Test:
If, assuming the decision is rendered against the public officer impleaded, enforcement thereof will require an affirmative act from the State, then the suit is against the State.
If, however, the officer may by himself alone can comply with the decision of the court without involving the State, then it will not be considered as a claim against the State.
1. It is necessary to point out that where a public officer acts without or in excess of jurisdiction, any injury caused by him is his own personal liability and cannot be imputed to the State.

25. Foreign states are also immune from suits filed in local courts.
Reason: Principle of the sovereign equality of States – One state cannot assert jurisdiction over another for to do so would unduly vex the peace of nations.

26. Waiver of State Immunity
The State may be sued, if it gives its consent.
Forms of Consent:
Express
Manifested either through a general or a special law.
Act No. 3083, CA No. 327 as amended by PD No, 1445
Implied
It is given when the State itself commences litigation or when it enters into a contract.
Act 3083 declares that the government of the philippine islands hereby consents & submits to be sued upon any moneyed claim involving liability arising from contract, express or implied, which could serve as a basis of civil action between private parties.
Now, if the government enters into a commercial or business contract, the assumption is that the state has divested itself of the mantle of sovereign immunity & descended into the level of the ordinary individual. Having done so, it becomes subject to judicial action & processes. This assumption does not apply where the contract relates to the exercise of the state’s sovereign functions.

27. However: the State may consent to it being sued, but the State does not thereby also consent to the execution of the judgment against it.
Waiver of immunity by the State does not mean concession of its liability.
Execution of State liability will require another waiver, lacking which the decision cannot be enforced against the State.

28. Concept of the Constitution

29. Definition
[T]hat body of rules & maxims in accordance with which the powers of sovereignty are regularly exercised. (Cooley, as cited by I. Cruz, Consti. Law)

30. Purpose
To prescribe the permanent framework of a system of government;
To assign to the several departments their respective powers & duties, &
To establish certain first fixed principles on which government is founded.

31. Supremacy of the Constitution
The Constitution is SUPREME.
No act shall be valid, however noble its intentions, if it conflicts with the Constitution. [Supremacy of the Constitution must prevail.]

32. Classification
Written
Unwritten
Evolved
Enacted
Rigid
Flexible
Written constitution is one whose precepts are embodied in one document or sets of documents.
Unwritten constitution consists of rules which have not been integrated into a single, concrete form, but scattered in various sources.
Cumulative or evolved is the result of political evolution, not inaugurated at any specific time but changing by accretion rather than by any systematic method.
Conventional or enacted, is the result of a conscious or deliberate effort taken by a constituent body or ruler formally struck off at a definite time and place.
A rigid constitution is one that can be amended only by a formal & usually difficult process.
Whereas a flexible constitution is one that can be changed by ordinary legislation.

33. The Philippine Constitution is written, conventional, and rigid.
One of its advantages is its permanence or its capacity to resist capricious or whimsical change dictated not by legitimate needs but only by passing fancies, temporary passions.
But sometimes, its rigidity can be a disadvantage too. The difficulty itself of the amending process maybe responsible for the delay in effecting the needed change & thus cause irreparable injury to the public interest.

34. Essential Qualities of the Written Constitution
Broad
Brief
Definite
Broad – it must embody the past, reflect the present & anticipate the future. It must comprehensive enough to provide for every contingency.
Brief – it must be brief & confine itself to basic principles to be implemented with legislative details more adjustable to change & easier to amend.
It must be clear or definite, lest ambiguity in its provisions result in confusion & divisiveness among the people, and perhaps even physical conflict.

35. Essential Parts of the Written Constitution
Constitution of Liberty
Constitution of Government
Constitution of Sovereignty
Liberty – it sets forth the fundamental civil & political rights of the citizens & imposing limitations on the powers of government as a means of securing the enjoyment of those rights. Found in Articles III, also in II, IV, V & XII.
Government – outlines the organization of the government, enumerating its powers, laying down certain rules relative to its administration and defining the electorate. Found in Articles VI to XI.
Sovereignty – points out the mode or procedure in accordance with which formal changes in the fundamental law may be brought about. Article XVII.

36. Interpreting the Constitution
Interpreted in such a way as to give effect to the intendment of the framers.
In case of doubt, the constitution should be considered self-executing rather than non-self- executing; mandatory rather than directory; & prospective rather than retrospective.
Interpreting the constitution must be made in accordance with the usual rules on interpretation & construction.
a) Self-executing – directly or indirectly it is applicable without need of statutory implementations.
b) Non-self-executing – one that remains dormant unless it is activated by legislative implementation.

37. Preamble

38. It is not an essential part of the Constitution.
Preambulare – Latin word, which means “to walk before” [pre:before; ambulare:to walk]
It is not an essential part of the Constitution.
Object & value of the Preamble:
Sets down the origin and purpose of the Charter.
It may serve as an aid in its interpretation.

39. Fundamental Principles & State Policies

40. Article II, 1987 Philippine Constitution
This article is intended to lay down the rules underlying our system of government & as such, it must be adhered to in the conduct of public affairs & the resolution of public issues.
The purpose is to emphasize and articulate unequivocally the objectives & limitations of governmental action in pursuit of the general goals announced in the Preamble.