Topic 5 - Theories and Inherent Rights of the State

• Theories of state origin

  • Divine right theory
  • Necessity or force theory
  • Paternalistic theory
  • Social contract theory
• Divine right theory - It holds that the state is of divine creation and the ruler is ordained by God to govern the people.
• Monarchs invoked this theory (Divine right theory) to justify their absolute rule.
• Necessity or force theory - States must have been created through force, by some great warriors who imposed their will upon the weak.
• Necessity or force theory - The state came into existence out of conquest, force, or coercion.
• Paternalistic/Maternalistic theory - The origin of states to the enlargement of the family which remained under the authority of the father or mother.
• Paternalistic/Maternalistic theory - Arose from the process of evolution starting from the smallest unit of society - family. The family headed by a parent enlarged into a clan and later expanded into a tribe, the tribe into a nation, and nation into a state.
• Social contract theory - States must have been formed by deliberate and voluntary compact among the people to form a society and organize government for their common good.
• Social contract theory - People created the state for the purpose of promoting and preserving their natural rights to life, liberty, and property (John Locke).
• Inherent powers of the state

  • Power of Taxation
  • Police Power
  • Power of Eminent Domain
• Power of Taxation - An inherent power of the state exercised through legislature, to impose burdens upon subjects and objects within its jurisdiction, for the purpose of raising revenues to carry out the legitimate objects of the government.
• Power of Taxation - Purpose: For raising revenue to carry out the legitimate objects of the government.
• Police Power - This is the power vested in the Legislature by the Constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the Constitution, for the good and welfare of the State and its subjects.
• Police Power - Requisites: interest of the public is general, not that of a particular class; and used are reasonably necessary for the purpose, and not unduly oppressive upon individuals.
• Requisites - a thing that is necessary for the achievement of a specified end.
• Power of Eminent Domain - This is the right of the State to acquire private property for public use upon payment of just compensation and observance of due process.
• Power of Eminent Domain - Requisites: there must be taking of public property; it must be for public use; there must be just compensation; and due process of law must be observed in taking of the property.