The Characteristics of the State
What is a legal system?
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The state is a legal system
By defining the state as a legal system, we don’t properly describe what a state is
Let’s define a legal system
The state is one of the legal systems
Ubi societas, ibi ius = wherever there is a social group, there is a legal system
Rules prevent the group from functioning inefficiently
Rules have to be enforced – concretely applied in everyday life  an individual or a
group of people is selected to make and enforce the rules  authority
An association is also a legal system
2 legal system definitions – normativist and institutionalist
Normativist def. – legal system is based on a fundamental norm  state produces
norm  norm is the center of the legal system (Hans Kelsen) – more formal
approach
Institutionalist def. – how the norms produced by the state interact with the
individuals who make up the society  emphasizes the sociological element (Santi
Romano)
Classification of legal systems
Criteria:
1. Fluidity:
a) fluid – NO central authority (international law)
b) concentrated legal systems – strong central authority (the State – characterized
by a single central strong authority)
2. Specialization:
a) Specialist – rules governing only to specific sets of relations (online trading, WTO,
The Church)
b) General – pursuing general aims – aspiration to govern all spheres of life (the
State, the EU?)
3. Voluntarity – the difference is whether you can opt in or opt out of a given legal system
a) Voluntary – people come together out of common will and can exit whenever they
like
b) Necessary – we become part of that legal system from the moment we’re born,
cannot exit whenever we like (mostly territorial)
4. Sovereignty
a) Non-Sovereign – this legal system in order to exist requires legitimation and
authorization by a sovereign legal system (EU – NOT sovereign because it is derived
from the state)
b) Sovereign – self-sufficient power, doesn’t need external legitimation (the State)
The State
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The state is original – not a derived entity
The state is a territorial legal system  it needs to have territory where it can
exercise its sovereign power
It can exercise its sovereign power and jurisdiction only within its territory
Each state has its own territory
Territorial jurisdiction (can be considered a 5th criterion)
2 types of sovereignty:
o External – the state is independent from any other state entity, it doesn’t own
its existence to any other entity, self-sufficient
o Internal – sovereignty over the territorial area of the state; single central
political power enforced over anyone who lives within the state border 
unifying element
Montevideo Convention 1933
The job of internation law is to regulate interactions between the states
Art. 1 of Montevideo Convention  qualifications that a state should possess in order
to be considered as a person of international law (to be recognized)
There may be situations in which a state exists even though it doesn’t meet all these
qualifications, or in which it is not recognized by international law (for political
reasons)
The fact that a state is not recognized on an international level doesn’t mean it is not
a state
“Puppet states” – not properly free to have their own independence  don’t properly
fulfil all the qualifications but exists as states and may even be recognized by
international law
Art.4 – all the states are equal!