Elements of the State

Generally, four constituent elements of the State are considered essential—population, territory, government and sovereignty. Understanding the State in terms of these elements makes it possible to differentiate states from stateless societies.

Population

For organizing political and civic life, the State should have people to act upon. However, a population is only one of the requirements and not the only condition for the recognition that a State exists. Furthermore, the ‘population, as constituent of the State, refers to a group of people united by common interests, who owe allegiance to a set of common rules and have certain rights and duties. These rights and duties are defined through a publicly adopted document usually called a constitution. People who enjoy publicly defined rights and duties are called ‘citizens’.

In a State, the term ‘subjects’ would define the population in a traditional sense more suited to a monarchy or a colonial State. However, the population of a State could be viewed both as citizens and subjects; the former as having certain privileges as members of the State and the latter under the command of the State, obliged to heed the power and be affected by the actions of the State.

Jean-Jacques Rousseau, the French political thinker, interestingly combined these two capacities—first, as active citizens participating in the formulation of the general will, and second, as subjects bound by the laws of the state. In Greek city-states, the principle of exclusion of slaves from citizenship, for example, tells us that merely inhabiting a territory might not necessarily qualify someone for citizenship of the State governing that area. The population was divided into three categories—citizens, slaves (inhabitants but not citizens) and foreigners. Modern states have laid down elaborate rules of citizenship and residency. The principles of non-residency, emigration, political asylum and refugee status are invoked to regulate and limit the population of a state.

The population with respect to the State could be homogenous or heterogeneous in terms of race, religion, language or culture. Greek city-states like Sparta and Athens could be regarded as states having homogeneous populations, modern states are not. Though the modern concept of the nation-state signifies some kind of homogeneity in population, the same is not considered to be an essential feature. Nation-states such as Bangladesh, Russia, France, Serbia, Sweden, Scotland, etc. are examples of states having a homogenous population base. There are many heterogeneous nation-states, e.g., India, Canada, the USA, etc.

There is no agreement amongst political theorists regarding the relative merit of homogeneous or heterogeneous states. John Stuart Mill, for example, favoured mono-national states. Lord Acton, on the other hand, was a vehement critic of the notion of a particular nationality being the basis of the state. While Mill considered coincidence of the boundaries of government with those of nationalities as a necessary condition of free institutions, Lord Acton asserted that the poly-national nature of a state was in fact, a necessary condition of freedom. Lord Acton also defended the poly-national state on the grounds of the development of civilization, as intercourse amongst different nationalities would help the growth of ‘less advanced people’.

The size of the population has also attracted the attention of theorists. Plato, Aristotle and Rousseau were in favour of smaller states and limiting the size of the population. For Aristotle, the principle that limited the size was governed by the fact that ‘it should be large enough to be self-sufficing and small enough to be well-governed’. For Rousseau, ‘the more the population, the less the liberty’. However, the populations of nation-states are not limited by the consideration of size, which varies from a few hundred thousand to billions. Nevertheless, the considerations of resources, civic amenities, job opportunities, law and order, peace and stability and international relations do influence the decisions of States to regulate their size.

It can be said that the population as an element of the State is both advantageous and disadvantageous for the state. A large population could pose problems for effective developmental planning but at the same time could add to technical and professional resources if enabling conditions were provided.

Territory

While the population or membership could be a characteristic of States as well as other associations, ‘territory’ is specific to the State. In 1817, a writer named Kluber is said to have been the first to include territory as an element of the State.⁸ This ‘territory’ refers to a specifically demarcated geographical area upon which the population, which constitutes a State permanently resides. This includes land, water, an airspace having boundaries recognized by other States or/and international law. Here ‘permanently resides’ refers to residency more in the sense of citizenship and the corpus of rights associated with it, not merely in the sense of physical residency. Migrants, refugees, nomads, and other unsettled people cannot claim to have a State as they do not have a demarcated territory upon which they ‘permanently reside’. Migrants and refugees may get their status changed provided they are absorbed into the exiting State and acquire residency either in the sense of citizenship and the corpus of rights associated with it, or any other special status.

The question of territory relating to Palestine and Israel in the post-Second World War period provides a good example of the significance of territory. Israel as a territory brought Jews from many parts of the world into areas it claims to be part of its territory. Palestine, though it has a population and a government, lacks a demarcated territory and has not been recognized as a State.

The recognition of territory as an element of the State is important for the principle of territorial integrity to be applied. International law requires each State to respect the territorial integrity of other States and any violation constitutes an attack on the sovereignty and integrity of the other State. Territory becomes significant from the point of view of the sphere of sovereignty. It is also important as a sphere for providing resources and markets to the state. The territorial spread of a state in a way decides the sources and availability of natural resources and markets.

Some writers support the theory of territory as a subjective element of the state. G. Jellinek, who attributed a juridical personality to the State, maintained that territory is a constituent element of the state’s juridical personality.⁹ This means that territory does not lie outside a State but inheres in it—if territory is taken away from a state, it no longer exists. However, Duguit, a pluralist, denies any juridical personality to the state and has attacked this position.

Unlike a population, there is no limit on the territory of a state and there are states with varying sizes. However, the issue of governability has attracted the attention of political theorists from Plato to J. S. Mill. Both Plato and Aristotle supported the idea of a moderately sized, well-formed state. Rousseau also supported a small-sized state in order for it to be well-governed. In his Social Contract, he concluded that monarchy was suited only to large states, aristocracy to states of moderate size and democracy to small states. Montesquieu also advocated a relationship between the size of a state and the form of its government. In his The Spirit of Laws, he suggested that the republican form of government was best suited to small-sized states while moderately-sized states were best served by the monarchical form and a vast State was best dealt with by the despotic form. Alex De Tocqueville also supported the view that the republican form of government was unsuited to large states. John Stuart Mill, in his Considerations on Representative Government, said that there was a limit to the extent of the country which could be advantageously governed or even whose government could be conveniently superintended by a single government. However, Mill’s discussion was in the context of the formation of a federal union.

Our experience in modern times suggests that the said relationship between the size of a State and the suitability of a particular form of government vis-á-vis governability may not prevail. The introduction of the principles of federalism with the division of powers between central and provincial governments and the development of local self-government makes this perceived relationship redundant. In their debates on the territorial extent of the United States and its relationship with the republican form of government, Madison and Jefferson, in the first and fourteenth numbers of The Federalist, had refuted this contention of Montesquieu.¹⁰ Both India and USA have large territorial size but have been successfully running republican governments. Means of communication and transportation (which also create an integrated market) have rendered the doctrine of the relationship of the republican form of government with State size meaningless. In fact, the principles of federalism and local self-government on the one hand and integrated markets, communication and the idea of the nation-state on the other, removes any such scepticism regarding the governability of large states.

Most writers of political science consider territory, and the principle of territorial integrity to be an essential element of the State. However, there are a few writers who feel that territory may not be an essential element of the State. John Seeley, for example, holds that fixed territory is not an essential element of the State and nomadic tribes do possess a State even though they do not have any territory. Duguit asserts that ‘territory is not an indispensable element in the formation of a state.’¹¹ He feels that the differentiating characteristic of the State is based on the distinction between the governed and those who govern. Recent studies based on the ‘political system’ framework have insisted on the presence of a political system amongst non-territorial communities.

A change in territorial extent can be either due to political reasons like wars, treaties or mutual transfers of territory or due to constitutional provisions. While the US and Indian constitutions provide for an indestructible union/federation, meaning thereby that the federal constituents cannot secede and form a separate state, the constitution of erstwhile USSR provided for the secession of its constituents.

Government

Generally, the State expresses itself through the government. The government is the day-to-day operating agency of the State. Three branches of government—legislative, executive and judiciary—render functions that the State is traditionally supposed to render. Speaking on the necessity of government, Garner says, ‘Government is the agency or machinery through which common policies are determined and by which common affairs are regulated and common interests promoted’.¹²

Viewed as such, the government uses the legislature to formulate policies and law. It executes and regulates the affairs of the state through its executive branch and promotes common interests. The judiciary is used to maintain and promote the principle of justice and fair play. If we recall Locke’s formulation of the branches of the commonwealth in the post-social contract civil society, legislative, executive, which included judicial and federative branches, emerge from the condition of the state of nature which did not have a legislator, an executor and an arbitrator. The government is responsible for maintaining internal peace as well as international relations. Locke’s formulation of duties of the federative branch includes treaty-making and the maintenance of external relations with other State.

The government can be at federal or provincial levels. K. C. Wheare defines federalism as ‘The general and regional governments of a country … independent each of the other within its sphere’.¹³ Thus, federalism implies a political arrangement and the division of powers between different levels of government, which may be independent in their sphere. It can also prove to be a significant instrument to accommodate diverse cultural and social interests within a State. India and Canada provide good examples of States where federalism has provided an accommodative political setup for diverse cultural, social and linguistic groups.

A government is only a particular expression of the State and is subject to change. A government is dissoluble and replaceable by another one. However, the State can be dissolved only at the cost of the loss of its sovereignty. Thus, the State is permanent while government is changeable. The government is a creation of the State and what Locke calls its trustee-enjoying fiduciary power. The State-government relationship can be described by the fact that governments possess neither sovereignty, nor unlimited authority but only derivative/fiduciary authority delegated by the State through its constitution. However, it should be remembered that in certain circumstances (like Nazi or Fascist states or authoritarian states), the distinction between the State and the government gets diluted to the extent of the possession of sovereignty.

Sovereignty

Sovereignty is considered the most important element of the state—the defining element of the state. The element of sovereignty bestows upon the State supreme, exclusive and unlimited legal power, one that gives it control over all individuals within its territory. It also distinguishes ‘fundamentally the state from all other organizations and associations’.¹⁴ Sovereignty includes both internal and external sovereignty. Internal sovereignty refers to the supremacy of the State over individuals, things and groups, associations or organizations within it. External sovereignty refers to the independence from foreign control and independence of decision-making with respect to international relations and international politics. This means that for a State to be sovereign, it must not be in a colonial relationship with other power(s).

Sovereignty has the characteristics of all-comprehensiveness or universality, exclusivity, absoluteness, permanence, inalienability and indivisibility. Sovereignty is universal in the sense that it covers all persons, things and groups, associations or organizations falling within the territorial limits of the State. It is exclusive in the sense that the State does not share sovereignty with any other organization; it is absolute, as there is no limit to sovereignty of the State and no other consideration can be invoked to limit it; sovereignty is permanent because sovereignty of the State continues as long as the State itself exists (without sovereignty, the State does not exist); sovereignty is inalienable, non-shareable and indivisible for the same reason that it should be always be there with the State, without being shared with any other organization.

The concept of internal sovereignty establishes the supremacy of the State over all other organizations, associations, bodies and groups within its territory. The concept of external sovereignty provides for independence of decision-making in international relations and also establishes the doctrine of the sovereign equality of states before international law. Writers on international law like Oppenheim (in International Law, first brought out in 1920) supported this doctrine.¹⁵ The fundamental foundation for the membership of the United Nations Organization (UNO) is based on the sovereign equality of all nation-states irrespective of their size, population and degree of development.

The concept of the right of self-determination has been advocated for enabling the granting of sovereignty to people agitating against the occupation of their territory by colonial powers or control by existing States. This is based on the principle that people constituting a nationality have some kind of natural right to determine their own political destiny. This concept made significant contributions during the anti-colonial struggle and provided the basis for de-colonization in many parts of the world. However, given the fact that various groups perceiving themselves as a separate nationality use this concept to demand independence, it has posed problems for many modern nation-states. It has encouraged various secessionist demands for self-determination. Political theory still has to reconcile the interest of modern nation-states with the principles of the right of self-determination. Whether the recognition of the right of self-determination is an infringement on the sovereignty of the existing State or whether refusal of the same is a denial of human rights is still to be resolved.

It may be appropriate to mention here that many writers on political science and international law accept the existence of sovereignty, but assert that sovereignty is not an essential constituent element of the state. Writers like G. Jellinek and P. Laband deny the necessity of sovereignty as an element of the state. For Jellinek, sovereignty is a ‘historical category’ and not an ‘absolute category’ and there have been states which lacked it, e.g., the medieval state, amongst others. For Laband, ‘the test of statehood is not sovereignty, the power of the community to determine the limits of its own competence’, rather it is ‘the right to govern, to command and enforce obedience’.¹⁶

The State can also be considered in terms of a juristic personality even without a population. The action of the State against corporations or companies or for that matter its citizens is regarded in a court of law as if the State has acted as a legal entity. Article 12 of the Constitution of India defines the state in this sense.