Brief Apology to the National State in Europe

• Author: Mihaela Carausan, PhD
• Position: Senior Lecturer. National School of Political Studies and Public Administration
• Pages: 1-6

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Europe dissolves when we want to see it clearly and distinctly; it comes to pieces when one wants to grasp its unity. If we try to find a founding origin or a non-transmissible originality, we discover that, at first, Europe didn't have anything specific and that today it doesn't own anything exclusively. The notion of Europe should be thought of in terms of a total, multiple complexities.

Europe is characterized by unity only in and through its multiplicity. The interactions among peoples, cultures, classes, states wove a unity which is it pluralistic and contradictory. Modern Europe constituted itself in a chaos of genesis in which powers of order, disorder and organization were knotted together. Europe didn't live, until the beginning of the 20^thcentury, but in divisions, antagonisms and conflicts which, in a certain way, created and perpetrated it.¹

Thinking of Europe, we had to rethink the state and its institutions. Understanding the European phenomenon is essential to the direction of the national political and administrative decisional process.

Even if Kelsen argued that "the State is not the entire juridical order: neither the pre-state juridical order of primitive societies, nor the supra-state or inter-state international juridical order, represent a State"², in all the countries and in all the cultures, people refer to knowledge and traditions regarding the state: what it is, what it does and what it should be³.

Relating to the above-mentioned issues we should refer to the State, the one who fights for power but ends up lost in it. The state is an abstraction; it is the cluster of political institutions whose specificity is the organization of domination, in the name of the common interest, on a certain territory. The State is represented by "us" - the governed, but, most of the times, it only represents "them" - the governing.Page 2

1. The permanence of the dynamism of the state

The dynamism of the state has been highlighted by the different doctrinaire trends of the times which gave birth to schools of state and law, since the very foundation of the city-state in Ancient Greece and up to the present day, when we speak of the rule of law. Interestingly enough, each of these schools set out to promote its own theory by denying or supporting what was before.

Thus, speaking of the state, and not only (also about law), we found it necessary to start with the study of the antiquity, because this is the source and the origin of the whole European development. Even though the society we are living in today does no longer resemble the society of those times, and the institutions which govern us are completely different, the founding principles, the universally valid ideas which govern our existence stem from what the philosophers of those times (Lycurg, Solon, Plato, Aristotle, Cicero, St. Augustine and d'Aquino) argued.

At the end of the Middle Ages and beginning of modern times, modern science was founded. It was also then when the conception of the public law was laid down, on the basis of the abstract concept of a "homo politicus", the perfect man who has perfect knowledge about all the needs of society, who has an ideal morality, who is the holder of law and who has to take part in the actual ruling of the state.

If the antiquity focuses on the collectivity, regarding the man as a mere means for the collectivity's ends, for the modernity, it is man who is the end. The genuine orientation towards self-knowledge starts with Descartes, with his famous saying "cogito ergo sum" (I think, therefore I am), which points to the human reason and has the aim of placing man in the centre of the whole universe.

"All the states which have, or had, power over people were or are either republics or principalities."⁴ With these words, Machiavelli became the initiator of a new way of regarding politics and the state. It was, however, the school of natural law that conceived a natural, free and equal man and described this natural condition as being contrary to the historic law. Man escaped this condition through the social contract, creating the state.⁵ Giving up their natural rights in favour of the State which protects them, people, and the whole society, entrust their sovereignty to the state. People do not preserve any right or any personal will for themselves, after renouncing at the exercise of its sovereignty, which is thus entrusted to the State once and for all. The State, represented by the sovereign, has no obligation to the people; the contract concluded between them does not affect the sovereign, as there is no contract between the people and the sovereign.

It is because of that that Kant's freedom is grounded on moral deeds. Even though law is based on reason, it can't spread its sphere of influence over the purely internal acts, the latter remaining outside the juridical regulations.

In fact, one may notice that the juridical development of a society is always varied, but it presupposes a unitary internal logic of the institutions, determined by the conditions of the juridical conscience themselves. When the subject "thinks" of himself, he must think of himself as a possible object for a different subject, he can't conceive of himself objectively as a possible thinking content for others.⁶

It was the Hegelian conception that had a strong influence on the whole thinking of its time and on the subsequent thinking, until today, emphasizing the need of studying social phenomena on an evolution scale, of connecting them with the past, of finding "der Geist", the spirit of this evolution.⁷ The acknowledgement of the importance of the historic school of law is not only due to this trend - Hegelian, Cicero himself proclaimed "historia magistra vitae", and even Montesquieu asserted that "les lois sont les rapports necessaries qui dérivent de la nature de choses".Page 3

Structuralism, seen as a revolution in the field of social sciences, in the sense that it provides the instrument of scientific precision on mathematical bases; is followed by utilitarianism, which moves from the analysis of justice...