Esto es la Universidad.... pública




Este blog está dirigido a vosotros, los estudiantes que acabáis de llegar a la Universidad. A la Universidad pública. A la universidad de todos. La que costeamos entre todos para que independientemente del nivel de vuestros ingresos familiares tengáis la oportunidad de aprender y de transformar vuestra vida. Para que aprendáis Derecho y, sobre todo, os convirtáis en personas pensantes y críticas, dispuestas a integraros inteligentemente en el mundo que os ha tocado vivir.

En este blog encontraréis primero las instrucciones para sacar el máximo provecho de "nuestro" esfuerzo conjunto a lo largo de estas semanas de clase. Pero también algo más: una incitación permanente a aprender, un estímulo para que vayáis más allá de la mera superación del trámite administrativo del aprobado. Escribía el piloto, escritor y filósofo francés Antoine de Saint Exupéry (1900-1944) en El Principito, que "sólo se conocen las cosas que se domestican". Por eso voy a tratar de convenceros de lo importante que es "domesticar" lo que vais a estudiar. Para que sintáis lo apasionante que es descubrir el mundo a través del Derecho. Pero no del Derecho a secas, sino del Derecho en su trayectoria histórica, en el marco cultural de la civilización en la que aparece. Para que comprendáis como sugería José Ortega y Gasset, que preservar nuestra civilización depende de que cada generación se adueñe de su época y sepa vivir "a la altura de los tiempos".

Para ello cada semana os diré qué tenéis que estudiar y cómo, os proporcionaré lecturas y os recomendaré ejercicios. También compartiré con vosotros pensamientos y consideraciones que vengan a cuento, al hilo de lo que vayamos estudiando.

Tendremos que trabajar mucho, vosotros y un servidor. Pero eso dará sentido a vuestro -nuestro- paso por la Universidad. Será un esfuerzo muy rentable para vuestro -mi- engrandecimiento como personas. Os lo aseguro.

Ánimo, y a por ello.

Un saludo cordial

Bruno Aguilera-Barchet

viernes, 3 de febrero de 2023

ON THE ORIGINS OF STATES AS HUMAN ORGANISATIONS. Teaching Guide 2


 This is the front page of the first edition (1651) of the canonic book Leviathan by Thomas Hobbes. So far the best justification of why we have to live submitted to a State.  Hobbes consider the state a monster, the Leviathan, a huge sea serpent mentioned in the Bible (Hobbes was a priest). But besides the text itself the editor had the great idea of asking French engraver Abraham Bosse (1602-1676) to include in the front page the best image ever conceived of a concept as abstract as the State.  A sort of a king which body is integrated by plenty of tiny men.  Its motto is "There is no power on earth to be compared to him" ("Non est potestas super Terram quae comparetur" a sentence extracted -again- from the Bible. (Concretely from the Book of Job 41,24)

 This visual approach to such an abstract concept as "State" will help you considerably to understand what it means. 

A great idea from Niccolo Machiavelli

Last week we dealt with the origin of a concept as complex as "nation" that since the 5th century AD has been constantly a part of our European culture, though politically not until the Enlightened Revolutions of the end of the 18th century, and especially during the 19th an 20th century. Despite the globalization and the European integration process, nationalisms have not disappeared in the 21st century Europe. Why? Because different groups of people think they deserve to be a separated nation in an independent State. 

This lead us to today to consider the appearance of the "State," a term that was used for the first time to refer to our political and administrative organization by Machiavel in his capital work The Prince (1513). This is the sense he gives to the expression in the following texts extracted from Chapter 18th:  


 - "And you have to understand this, that a prince, especially a new one, cannot observe all those things for which men are esteemed, being often forced, in order to maintain the state, to act contrary to fidelity,[4] friendship, humanity, and religion [...]"

- "Everyone sees what you appear to be, few really know what you are, and those few dare not oppose themselves to the opinion of the many, who have the majesty of the state to defend them; and in the actions of all men, and especially of princes, which it is not prudent to challenge, one judges by the result [...]".

- "For that reason, let a prince have the credit of conquering and holding his state, the means will always be considered honest, and he will be praised by everybody; because the vulgar are always taken by what a thing seems to be and by what comes of it; and in the world there are only the vulgar, for the few find a place there only when the many have no ground to rest on [...]".

Since Machiavel the States are an essential part of the World's organization. 

A World of States

Although we live in a globalized world, our planet in the 21st century continues to be divided into "states". Today there are 193 member states of the UN. And to these 193 “official” states must be added others that do not enjoy full recognition.

South Korea and North Korea do not recognize each other. The People's Republic of China remains unrecognized by 19 countries that, nevertheless, recognize the ROC (Republic of China) of Taiwan. The State of Israel is not recognized by 32 countries, and the Republic of Palestine is only recognized by 136. Turkey does not recognize the Republic of Cyprus, which is, nevertheless, a member of the European Union, but it does recognize the Turkish Republic of Northern Cyprus, which is not recognized by any other state. Pakistan does not recognize the Republic of Armenia. The Republic of Abkhazia has, so far, only been recognized by 6 countries. The Republic of Kosovo has only been recognized by 104 of the 193 UN countries. On top of that other territories are struggling to become members of the UN, such as the Sahrawi Arab Democratic Republic, South Ossetia, the Nagorno-Karabakh Republic, the Pridnestrovian Moldavian Republic, aka Transnistria. The most unique case however is that of Somaliland, which remains unrecognized by any state despite having declared itself an independent state and functioning as one.[1]

Not simple, isn’t it? But despite all this complexity it seems that States apparently seem to remain inevitable as this form of organizing a political community has been adopted by almost everyone. Of course you have the case of the sustainers of the Islamic State of Irak and Siria (ISIS),  who want to get back to the Islamic original Religious community known as the Caliphate, with a religious leader at its head. But of course, besides the fact that they have been militarly defeated, they have the problem that Siria and Irak are still full states and their respective governments are not willing to give up at all on this.

The ISIS flag


Why do we need states?

As Harari explains our species prevailed over the rest of the hominids, and came to dominate the world, thanks to its ability to cooperate in large numbers. And this cooperation capacities relies, more than anything else, on inventing common fictions that motivate us for living together. States are one of these fictions, an artificial contrivance created by men to dominate the world.

The fact that states have multiplied all over the planet is thus due to the fact that they are, undeniably, highly operative instruments for social organisation that makes possible to pool large amounts of human and material resources to jointly achieve specific objectives. Human beings organised into states are simply more powerful.

 But states are not the only efficient way of getting organized. Another very efficient way of cooperating together in a large scale are the big corporations of the business world with corporations, in which many people invest their money to make possible bigger and more profitable operations. If money makes the world go round, corporations are undeniably the big protagonists as they enable that a bunch of people invest their money to make possible bigger and more profitable operations. That is, to make more money; because, the higher the business volume, the greater the profits. If the goal is to get rich, the more backers a company has, and the more resources they contribute, the more financial power it will wield. In fact, most of the world's wealth is in the hands of companies, because they are extraordinarily profitable "fictions".

 You might say that States are bigger and more powerful than corporations, but this is not true any longer, if we consider the technological giants like America’s GAMAM (Google, Amazon, Meta, Apple and Microsoft) and Chinese BATX (Baidu, Alibaba, Tencent and Xiamo), which, thanks to the Covid 19 pandemic have become more powerful than ever because they have changed our lives. It is highly significant that the GAMAM, in 2015, boasted a budget greater than those of countries like Portugal, Greece and Denmark. And American Company Wallmart is wealthier than Spain. No wonder than the Danish government since 2017 has named a digital ambassador to deal with Silicon Valley’s giants.  

If these huge and powerful multinational companies are so efficient for helping us to cooperate together in large numbers and dominate the world, we can ask ourselves if we still need states in the 21st century. The question is not only a rhetorical one. In fact, apparently we could live without states, as proves the case of Somalia, a territory that used to be a state until 1991 and now has a sort of feudal regime under the rule of war lords.


 After 30 years with no state Somalia territory still exists, and some defend that Somalis are better off without a state, organized under the private initiative. They consider that the that Somalia has been stateless for 30 years has been a blessing, pointing out that it not only continues to function, but it has economically outperformed some neighbouring states with central governments. They contend that, during three decades without a state, Somalis have been spared the chaos of a corrupt central administration, a recurrent problem burdening African countries. Hence, the private sector has thrived, and private initiative has made the country more modern than its bordering countries with central governments - a fact acknowledged by the World Bank itself.[5] Obviously, this has generated controversy as to whether the free market can really guarantee social order without any need for a state at all.

But even considering the case of Somalia, and the fact that huge multinational companies are valid ways of cooperating in large numbers and in a very efficient way the fact is that states still exist. Specially since they developed powerful national narratives. And this is why we will analyse in this Teaching Guide 2 the origin of the European States. As we Europeans invented this peculiar form of Human organization. 

Where do the states come from? 

The statal organization did not appear overnight. It has required centuries of development, going through different steps, First appeared the cities like Jericho (11.000 years ago). The first artifical human organization. 


 Then we had empires. The first being the Accadian empire (4000 years ago)


 But finally the "state " itsel would come from the Western tradition, starting with the Greek polis and the Roman empire. 

The Roman Empire was coetaneous with the Chinese Han Empire

Then came the Medieval European Kingdoms, the Absolute Monarchies, and the contemporary Nation-States that appeared since the last third of the 18th century in the United States of America or in France. 

Today we will look into the origins of the "State" in the European tradition. Starting with how the Germanic "kings", became "monarchs", and how the feudal concept of "suzerainty" turned into the one of "sovereignty". How the principle of personality of the Law, according to which in the Germanic kingdoms every "nation" had its own "national law," was replaced by the principle of one single law for the whole kingdom (Territoriality of the Law). The example of Philip II of France, who started his reigns as "king of Francs" and ended it as "King of France" is self-explanatory.  


 Thank to this medieval “monarch”, the European Kingdoms expanded and got organized not only politically but from an administrative and legal perspective. These monarchs became really powerful when they reached the status of Absolutist kings that could create their own laws through "legislation", besides being the supreme judicial authorities of the kingdom. Their absolute power, justified by the lawyers formed in Medieval Universities that studied Roman Imperial law and considered the kings as "emperors" in their own realms, and by political thinkers as Nicholas Machiavel (1469-1527) and Jean Bodin (1530-1596), consolidated the idea of the State.



Absolutism was extraordinarily efficient to create powerful Monarchies that would turn into "national kingdoms" before becoming "National States" something that occurred when sovereignty was vested not on the persons of the monarchs but on the "Nation," a term now understood as the ensemble of citizens, the whole set of people living in a Kingdom or Republic.  


INSTRUCTIONS: First read the text included in your Materials (pages 18 to 25). And then proceed to answer the Concrete questions, Concepts and General Questions. Do not hesitate to ask in class if anything is confusing or not clear. 

Concerning the Basic Chronology (pages 26-27) the crucial dates, the ones you have to remember, are the following: 1188, 1215, 1223, 1302, 1348, 1390, 1513, 1547, 1576, 1624, 1651 and 1661.   

TOPIC FOR DISCUSSION IN CLASS: Be prepared to comment the following quote of Henry Kissinger (1923) : “If I had to choose between justice and disorder, on the one hand, and injustice and order, on the other, I would always choose the latter.” based on a quote from Goethe ("I prefer to commit an injustice than tolerate disorder").

 

Though as Michel Houellebeq precise, these words "[...] were said during the French Revolution in front of the city of Mainz, which had been recovered by the Prussians. He said it only minutes after personally intervening to prevent the lynching of a French soldier who had been evacuated by the troops of the Duke of Weimar. In the context, the "injustice" consists of sparing an enemy soldier who may be a great criminal. The "disorder" is that of the unleashed, bloodthisrty rabble, ready to tear a man to shreds. Thus, in his mouth the phrase really means the opposite, exactly the opposite of what you say he meant. Indeed, since Barrès he has allways been misinterpreted." (Extracted from Michel Houellebeq and Bernard Henry Levy (2011) Public Ennemies London: Atlantic Books). 

Please consider the following aspects: 

1. The contrats between the Greek Classical Polis and the Roman Empire. Why Rome became a big power and not the Athenian democracy?

2. How traditional kings, issued from a concrete family (dinasty) became "monarchs" (From the Greek "monos" one and "arcos" power). 

3. The difference between the concepts "Suzerainty" (within the frame of a feudal society) and "Sovereignty" (framed in the late medieval period, and in the Absolutist era by Jean Bodin). 

4. What means that the Medieval monarchies turn "territorial"? What are the consequences of this territorialisation? 

5. Bear in mind the "Technical advantages" of Absolutism (pages 22-24) over a theocentric and feudal society where the kings shared their power with the "Assemblies of Estates". 

6. Please consider that the growth and development of the idea of "State" relies on the expansion and growth of European Monarchies demanding a significant bolstering of royal power. 

7. Consider also why after World War I, the European liberal "laissez faire" regimes gave  way to totalitarian models of state like in the Soviet Union, the Fascist Italy or the Nazi Germany. Think of the conditions that enabled the bolstering of State power and the dissolution of democracy and the Rule of law. 

8. Do you think that the actual Pandemic situation justifies a bolstering of the Government powers, restricting individual liberties and fundamental rights, as for instance proclaiming the "state of alarm" for 6 months, in clear violation of the 1978's Spanish constitution which clearly requires its renewal every two weeks.   


 


 



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