V.J. Chalupa

On Post-Modern Politics

The evolution of the state resulted in various types of use of supreme power: states autocratic and democratic, pluralistic and monistic, centralized and decentralized, presidential and parliamentary, elective and hereditary, unitary and self-governing. In all these types there appeared similar necessary organs which are divided into three great groups: legislative, executive and judiciary ("the separation of powers"). Their actions form the government in the wider sense of the word regardless of whether they are divided among a legislative body, administration (government in the narrower sense of the word) and a supreme court, or concentrated in one person -- a king or a president.

Because each norm has its normgiver, a hierarchy of normgivers exists side by side with the hierarchy of norms.  The entire legal system is the expression of the state's will and the actions of secondary normgivers express this will, but there are important differences in the viewpoint from which secondary norms are created. It is necessary to distinguish organs that create norms because it is their duty, from those that, in the creation of legal norms, look at the law as a means of implementing their aims that are derived from the political purposes of their creators and through the normative process become a part of the purpose, of the objective of the state. Organs that in this manner create the will of the state according to their political objectives hold the legislative power.

In order to implement its will (expressed by law), the state has organs whose purpose is to execute it -- the organs of executive power. The purpose of executive power is to transform law into reality either by the state's own organs or by forcing the subjects of the state to do so through fulfillment of their (legal) duties. Enforceability is a crucial quality of law and is the basis of the state's internal sovereignty as well as external independence. 

Enforceability requires, in certain situations, application of physical force in a measure sufficient to overcome resistance. This presupposes availability of suitable and sufficient executive and enforcement means. Among them, the decisive one is the possession and use of arms. Arms destined for the enforcement of the will of the state against its own subjects are usually entrusted to security organs: police (private, local, state), prison guards, militias;  arms destined against outside threats to the sovereignty and integrity of the state are entrusted to the army. Only in exceptional circumstances is the army used to protect the state's sovereignty against its own citizens.

Existence and occasional utilization of physical means enables the state to circumscribe and limit its subjects' liberties: personal (imprisonment, traffic regulations, military or labor service) and material (taxes, fines, confiscation, expropriation, building codes, environmental regulations). By their use, the state  acquires  control of additional means for implementing its will -- buildings, means of production, transportation and communications. Among them, state organs which conduct economic activities form a special group. Their purpose is to provide  goods serving the fulfillment of subjective goals of the state's subjects, or needed for the attainment of purposes of the state.

No matter how the possession of coercive means is arranged, it requires that organs of the executive power be organized hierarchically; their highest instance is the government  (administration) of the state. The government (in the narrowest sense of the word) is the group of persons responsible for and directing important sectors of the executive power -- internal security, army, industry, commerce, agriculture, education, relations with other states -- customarily called "ministers" - with their presiding officer (prime minister or premier). In the presidential type of government, it is the president who holds the position of the head of the executive power.

No matter how extensive its powers, the government is usually responsible to the institution which is the real source of  the state's will. This source can be the citizenry (in the form of direct election of the president or in the form of representative democracy), or a monopolistic political organization, a coalition of political organizations, but also a military junta, a monarch or a dictator.

Organs of the executive power act on the basis of purposive thinking, i.e., trying to achieve their objectives according to the rule of maximum benefits at minimum costs, but this objective is not determined by them, it is given to them, ordered by a legal norm in a lawful state, by instructions from the organs of the ruling political entity in a lawless state.

Purposive thinking is inadmissible in the judiciary. The duty of organs of judicial power is to determine whether this or that fact is consistent or inconsistent with valid legal norms, and what punishment applies; theirs is normative thinking: determination of legal validity. These organs apply the will of the state by applying its abstract expressions in the law to the immensely variegated concrete actions of individuals or other subjects of volition (and legal duties).

The combination of judicial and executive powers is the foundation of the enforceability of the will of the state through the enforcement of law. When judging it useful for its purpose, the state increases legal penalties and strengthens its executive power to an extent necessary to have its will prevail, i.e., to bring its subjects to submit to its legal order. Its consistency and enforceability means that the right to make laws, i.e. the legislative power, is the most effective means of transformation of the society subject to a given legal system. The directing of public affairs is identical with the legislative power.

Divided Sovereignty

A state whose legal system is uniform, is a unitary state; a state whose legal system is so varied that it cannot be logically attributed to one norm-giving subject, is a composite state in which sovereignty is divided. Because power has a tendency to expand, there is always a tension between common organs of a composite state and its constituent parts; the common organs have a tendency to centralize and increase the scope of their powers, and this contest is one of the sources of political dynamics in a composite state.

Federation

The division of sovereignty can have several degrees. Its most successful form has been the federation. The main characteristic of a federation is that its components (members) are equally sovereign among themselves as well as in their relationship to the federation in all matters which they have not transferred or reserved for the common organs. Federated members retain sovereignty in all areas which they have not transferred to the federation; in areas they have transferred to the common authority, the federation assumes sovereignty and its members are subordinated. Without this relationship it is impossible to consider a grouping to be a federation or a common state because sovereignty at least in relations with other states is the essence of statehood

In order to attain or secure common interests, a federation is formed either when (a) a unitary state transfers a defined part of its sovereignty to lower entities and keeps the rest, or (b) sovereign entities transfer a defined part of their sovereignty to a joint organ and keep the rest. In either case, one of the parties must give up something. Therefore, the basis of the federative process is a clear idea of the extent and importance of common interests of the federating entities because this extent determines the extent of the sovereignty transferred (or left) to the federal organs. Within the scope of their jurisdiction, federal organs have the authority to implement their objectives through their own legislative, executive and judicial organs over the entire territory of the federation; outside the scope of their jurisdiction, they have no right to interfere. This results in a parallel structure of legislatures, governments and courts existing side by side, whose jurisdictions do not overlap or contradict each other.

Other composite states

A confederation is a grouping of states which create, by common agreement, common organs for joint performance of certain activities while retaining their separate sovereignties. Their common organs do not have their own legislative, executive or judicial powers and their decisions are subject to approval or rejection of member states. A unique case of a confederation is a personal union -- a confederation of sovereign states that have the same person as their head of state. The head of state with his personal advisors and bureaucracy is their only common organ. (The most successful of personal unions was the Hapsburg empire; it fell apart when its central organs tried to transform it into a unitary state.)

States that retain their full sovereignty and band together to pursue common interests, are alliances. To pursue such common interests, especially long term interests, a common executive (bureaucracy) is created. In order to arrive at a decision, unanimity of all members is required. Any other common organs have only an advisory role. In the recent past, alliances began changing into more stable and permanent supranational organizations by limiting the rule of unanimity and thus the individual members' sovereignty. The centralizing tendencies usually start with military or economic coordination, and the bureaucracies entrusted with the execution thereof gradually assume increased independence and enlarge the scope of their activities. The development of UN, NATO and the European Union are contemporary examples of such a process.

Allocation of Sovereignty

The extent of jurisdiction and  mutual relations of state organs can be arranged in various ways.

Centralization

is the form of government where a central legislative power is the only source of the state's will, where the state's will (expressed by legislation) is executed by a central government (through a centralized bureaucracy) and where the judicial power is invested in one system of courts enforcing one hierarchical, i.e., derived from one highest legal norm, system reaching from the Supreme Court down to the individual policeman imposing a fine for violation of traffic regulations..

Decentralization

is the form of government in which the creation of the state's will is centralized in one legislative body, but its implementation (executive power) is placed under the authority of local organs (elected in democracies, appointed in autocracies). The supervision of executive organs on the lower levels is entrusted to local organs only or, most often, to local organs in which are included representatives of the central government to guarantee a degree of uniformity in the implementation of the central legislation. The central legislative power decides what will be done, fully or partly independent lower organs decide how it will be done. The instruments of enforcement and execution belong to the state and the cost of their activities is defrayed by the central government from its state-wide budget.

Self-government

is the form of government in which the state's legislative power delegates a part of its jurisdiction to lower organs (elected in democracies, appointed in autocracies) which create legislation within the framework of the laws, i.e., self-governing   bodies which have within the limits of the law the right to create norms according to their own political will. Self-governing (autonomous) bodies determine both what will be done as well as how it will be done. The instruments of enforcement and execution belong to them and the cost of their activities is defrayed from their own resources, i.e., they have the right to impose taxes, fees and duties. (Feudalism was a typical example of this system.)

The line separating decentralization from self-government is not quite clear especially where the legislature of a decentralized state issues norms with a small content, i.e., it leaves to the object of duty a wide scope of ways of implementation so that the lower organs have an opportunity to interject their political objectives during the concretization of the higher norm. Decentralization then phases over into self-government.

In a decentralized state or a state with self-government, the sovereignty remains centered in the highest organs of the state (legislature, government, judiciary) and the norms originated with lower organs possess the same validity (are binding on the subjects of the state) to the same extent as the norms created by the highest organs of the state. Therefore norms of autonomous bodies are often enforced by central organs of the state (courts, police) although the autonomous bodies have their own executive organs.

Self-government is the most important among the arrangements of a state's administration. It is the simplest and most natural way of directing public affairs: those affected by them (1) decide to what purpose public affairs are to be conducted, (2) execute their decisions, and (3) defray related expenses.  Self-government rests on the following preconditions:

1. the authority of self-governing (autonomous) institutions is based on the constitution or other laws,

2. they issue legally binding norms in matters falling under their jurisdiction inclusive of taxes and fees necessary to defray their expenses,

3. norms issued by autonomous institutions must not deviate from the law or any other higher norm, and being a part of the legal order they are enforceable by the state power,

4. self-governing institutions must not impose duties or cause harm to those not subject to their jurisdiction,

5. their decisions are implemented by organs which are subordinated and responsible to them, i.e., they possess their own executive and judicial power and own appropriate means of enforcing and implementing their valid decision.

The scope of self-government, i.e., its jurisdiction, is defined by the superior legal norm(s) and limited to those who belong to the self-governing unit.

This principle seems to be clear, but in practice, it can lead to conflicts (5).  If these conflicts cannot be prevented by more accurate definition of the pertinent legal norms or solved by other means (financial incentives or disincentives), the decision is made by the judiciary, eventually the Supreme Court or Constitutional Court.

Grants from budgets of higher level bodies are a frequent method of settling such conflicts. The are a welcome source of funds and also a way of curtailing the independence of autonomous bodies. There are three types of grants:

unconditional grants, for instance the distribution of budget surpluses of a higher body to its subordinate bodies;

conditional grants which can be used only for certain purposes determined by the grantor such as following certain programs of education in schools under jurisdiction of communities or counties, amelioration of infrastructure (roads, bridges), environmental protection, etc.; mostly projects which the self-governing units would not undertake on their own (the latest and most grandiose program of this kind is the Goal 2000 program streamlining education at the expense of local autonomy and advocated by the federal executive in the United States);

matching grants which are similar to conditional grants except that the higher body matches funds spent by a lower body for a certain purpose the higher body considers desirable.

All such grants result in influencing the grantee in favor of decisions made by the grantor and are used for this purpose when the grantor does not have the jurisdiction over the decisions of the grantee nor does it have the obligations to contribute to grantee financially or otherwise. The threat that such contribution will be missed while other self-governing units will accept it and thus gain economic advantages forfeited by the refusal of a grant, finally induces all potential grantees "voluntarily" to submit to the grantor. Considered under the purpose desired by the grantor, offer of grants is an effective means to achieve uniformity in the area of its jurisdiction and to equalize social disparities between its parts, which is important.

Another means serving the same purpose is to rearrange the territories of lower autonomous administrative units or to establish new units encompassing economically, racially or culturally different people in order to initiate or strengthen amalgamating processes. Therefore constitution or legal provisions subjecting re-districting to the approval of the affected autonomous units are an important safeguard of self-government.

What was said above about grants applies n the same measure to bureaucracies. It is essential for self-government to have its own bureaucracy paid by it and responsible only to its normgiving organs. A bureaucrat is loyal primarily to the source of his compensation, and it is impossible to serve two masters. The establishment and maintenance of its own bureaucratic apparatus might seem uneconomical and possibly an unnecessary duplication, but it is a price self-government must pay for its autonomy; moreover, it can control the expenses of its own bureaucracy, but the cost of a bureaucracy subordinated to a higher level of administration must ultimately also be defrayed by the same people, without the same level of control.

Self-government is either functional or territorial.

Functional self-government.

The purpose of the state is optimal, i.e., a composite of maximum objectives mutually competing for limited resources. Certain technical secondary objectives can be separated out of the primary purpose and their implementation in the relative area entrusted by the state to autonomous institutions whose decisions (norms) are legally valid and enforceable. The state may also allocate to them funds to be utilized in the pursuit of their respective objective. Examples of such institutions are the National Endowment of Arts, National Endowment for Democracy, the Federal Reserve Board; in lower units they are called Authorities or Boards, such as a Park Authority, School Board etc.

A state organized along the lines of functional autonomy is a corporate state. Its principle is to entrust decisions about a certain sector of life to representatives of groups that share it or are interested in it: for instance in automobile industry to representatives of factory owners, unions, consumers and the government (the latter having possibly a veto power). The idea is that the common interest will overcome or at least mitigate opposite interests within the given area and thus enhance social peace.

The widest application of this principle was made by the fascist state in Italy (which does not mean that each corporate state must be a fascist state).

Territorial self-government.

This embraces citizens living in a given territory authorized to issue legally valid norms by which they are subsequently bound. Territorial self-government is usually (but not always) arranged so that smaller units are parts of and subordinated to larger units.

In a democracy, the selection of representatives of the inhabitants of an autonomous unit is governed by a universal norm (constitution or law), or each unit has the right to create its own election procedures; there is room for various forms of territorial self-government which coexist and can be changed by the decision of their subjects to correspond to local conditions (size of territory or population, complexity of needs, and other). In the United States, the types of local government are: council, council -- strong mayor, commissioners, council -- manager. There exist a number of combinations of these types.

In autocracies, representatives of autonomous units are either appointed or otherwise selected without participation of the subjects of duty.

Representatives of self-governing units decide and act in the scope and manner granted them by nationwide or local legal provisions. In order to control their activities, central institutions frequently create their own parallel bureaucracy without whose agreement or approval the norms issued by self-governing units have no legal validity.

Local Self-government

For most people, the most important autonomous body is local self-government, i.e., a self-governing unit whose inhabitants have the power and the knowledge -- or access to the knowledge -- to make intelligent and informed decisions about its norms, their implementation, the persons making them as well as the background against which they are made.

The prevailing norms of local self-government are the community (municipality, village, township, city) and the county. Within their framework, various forms of direct democracy are possible -- votes at township meetings or by referendum -- reinforced by sundry regulations: the obligation of self-governing bodies to hold meetings open to or with participation of the public, the obligation to issue regular reports on the management, especially financial management, of the self-governing unit, the obligation to issue regulations or other decisions only after consideration of comments by the public or by directly involved persons, and other forms of participation. The American experience has proven that an important part of the citizens' control of their local government is the principle that communities or counties are allowed to assume financial obligations exceeding the duration of the office of present office holders only after approval by a referendum..

Local self-governments determine most peoples' day-to-day life by the services they provide and the typical obligations they impose.

Traditionally, and in many countries, communities have the authority of limiting voting rights to persons who have resided in their territory for a certain period of time and having fulfilled certain conditions (for instance, no criminal records) were granted the right of residence; non-residents do not have the same rights (6).

In general, the autonomy of local political bodies is losing its importance under the influence of standardizing pressures exerted by the industrial society.

Consolidation of Autonomous Bodies

The fact that higher and larger autonomous units than local governments are common indicates that there are causes or reasons for the formers' creation. They may be summed up as follows: technology, economy, military power, social needs, protection of common interests, standardization. A certain amount of centralization becomes necessary when smaller units do not show willingness to solve the above listed tasks by voluntary normalization. Examples of such voluntary normalization are the acceptance of human rights by the Conference on Security and Cooperation in Europe, acceptance of an identical commercial code by the states of the Union, formulation of Uniform Customs and Practice for international banking.

The post-World War II period brought about a significant global strengthening of centralization. Extra-political centralization takes place especially in two key areas: economy and culture (including entertainment). International (multinational) economic organizations centralize global economy through introduction (occasionally introduction imposed by the International Monetary Fund and the World Bank) of market economy, private enterprise and abolition of duties. Global mass media centralize the distribution and explanation of information and steer culture towards uniformity by creating its components (TV plays, film, videos, songs, electronic networks).

Politically, international centralization progresses through the growing power of supra-national institutions, i.e., their bureaucracies, forming and enforcing a "new world order." The main obstacle to these global centralizing tendencies is the existence of nation-states; therefore their independence is continuously whittled down and portions of their sovereignty transferred voluntarily or not so voluntarily to the extra-political and political centers of worldwide power.

Reduced Sovereignty

The sovereign power of the state is never absolute in practice, and in the recent past certain organizations were able to carve out enclaves in which the state is powerless; within such enclaves their will is supreme, but they are not recognized as sovereign legally although they are not subject to the will of the state practically.

Their precursors were the war lords in China and Japan and the robber barons in  Europe, more recently the control of Sicily by the Mafia. They are at present the great international crime organizations which hold as their base certain territories in a semblance of the double government scheme of Trotsky: their existence is made possible by tolerance and support of the local population. The two most powerful examples are the drug cartels of Colombia and crime mafias in Chechnya. In Colombia, in spite of armed assistance the state obtained from abroad (the United States), the drug cartel fought to a standstill efforts of the government to eradicate or at least limit its activities. The Chechnya mafia even managed to elect one of its chieftains as president who then declared independence from the Russian commonwealth and by combining the crime lords' case with local nationalism, managed to stymie Russian efforts to reassert sovereignty over that area.

Similar tendencies exist in other states in locally adjusted and reduced forms which resulted in a sort of modus vivendi with the state through a combination of violence and corruption. Such is the case of Mexico and Japan; in Japan, the crime syndicates police areas where their interest (gambling, drugs, whorehouses, porno, child prostitution) are located; and maintain brutally the safety of their "customers" against random robberies, muggings and attacks.

It appears that no single democratic state, no matter how powerful, is capable of extirpating the international networks of these huge, wealthy and powerful organizations with their own tribal government structure, armed terrorist groups, enforcers, airplanes, flotillas of ships, lawyers and political connections. Only dictatorships or totalitarian states occasionally managed to do so, at the price of a brutal suppression of basic human rights and civil liberties. In view of this impotence, this form of coexistence of states with organized lawlessness must be included among the enumeration of existing systems of government.