Classification of States in the Forms of Monarchy and Republic by Georg Jellinek and Leon Duguit, Wahl-monarchi
Classification of States
The classification of countries with a system like the one mentioned above, for the modern era, is no longer possible to maintain.
For example, for the British state, this is if according to Aristotle terms it is not a monarchy, whereas according to the current understanding, the British state is called a monarchy, and that is the real situation. According to Leon Duguit, because the head of state is appointed based on the inheritance system.
Also regarding the notion of democracy put forward by Aristotle, it cannot be maintained in this modern era. Is it not in the current understanding that a democracy is not a bad country as Aristotle seems to describe. Rather, democracy shows the existence of a representative system of people's government.
Likewise, regarding the meanings of the terms aristocracy and oligarchy, presumably it is no longer defensible for the present, because there is no longer such a government. But even so, all of them are still important in the world of science.
So then in the renaissance era, a great scholar of thinkers about the state and law, Niccolo Machiavelli, in his famous book "Il Principe", has put forward the classification of the state into two forms, namely the Republic and the Monarchy. According to the scholar the country is a Republic or Monarchy.
It should be noted that it was only from then on that the word "state" was gradually used firmly. And in Niccolo Machiavelli's teaching, state is used in the sense of genus, while the terms Republic and Monarchy are used in the meaning of Species.
Then in modern times Georg Jellinek in his famous book, "Allgemene Staatslehre", published in 1914, also put forward an explanation of the form of the state into two, namely the Republic and the Monarchy.
Jellinek used the term monarchy as opposed to a state organization called the Republic. And actually according to Jellinek, the difference between the monarchy and the republic is really about the difference from the system of government, but even so Jellinek himself interpreted it as a difference rather than the shape of the country.
In suggesting the difference between the monarchy and the republic, Jellinek used the criteria of a question about how the state's will is formed.
Why did Jellinek use this method, namely the way the state will be formed, as a criterion in his teaching on state classification? Because according to Jellinek, the country is considered as a unit that has
the basics of life, and thus the state has a will or will.
The will of the state is abstract in nature, whereas in its concrete form the will of the State incarnates as law or statute. So the laws or regulations are the embodiment or incarnation of the will of the state. It is the state that has the highest power, and the state has the authority to make and enact laws. Recall in this connection Jellinek's theory of state sovereignty.
Above it is said that Jellinek in his teaching on state classification uses criteria, how is the state's will formed, we can see or study the way it is formed and the form of the laws of that country. Because as the way the law is formed, this is the way the state will be formed.
According to Jellinek, there are two kinds of ways of forming the will of the country
- The will of the state is formed or composed in the soul of a person who has a physical form or form. This means that the will of the state is determined only by one single person, no other person or body can interfere in the formation of the will of the state, the will of a state that is formed in this way is called physical will, and a state that has physical will is called a monarchy. So strictly speaking, in this monarchy the laws of the country are only determined or made by a single person.
- The will of the country is formed or arranged in a council. Council is a meaning that exists only in law, and is abstract in nature and has a juridical form. It is true that the members of the council, namely people, each one is a fact and has a physical form, but the council itself is a juridical reality, because the council is a legal construction, so that its existence is precisely what is determined by regulations law, where several people are a unit, and are considered as a person. The will of the state which is formed or structured in this way is called the will or juridical will, and the state which has this juridical will is called the Republic.
Therefore, it can be said that if in a country the laws are the work of a single person, then that state is called a monarchy.
On the other hand, if the law is a work rather than a council, the country is called the Republic.
What are the consequences of Jellinek's opinion on customary law ? According to Jellinek, that habit is only a law, if the state wants it and establishes it as law.
In accordance with the teaching system, Jellinek classified the state called Wahl-monarchie into a monarchical state. Kranenburg agreed with this, but in the meantime, on another matter, namely, against Jellinek's opinion regarding the differences between monarchy and republic, Kranenburg could not accept it, especially against the criteria used by Jellinek.
But let us talk about this beforehand, discuss first what is meant by Wahlmonarchie.
Wahl-monarchi is a country in which the head of state is elected or appointed by a special organ or body. Its specificity means that the organ's duties are limited to the selection or appointment only; so after holding an election or appointment of a head of state, the organ's duties are finished.
It's only special, and this is also a special thing, the organ is not then dissolved, because the organ then becomes the subordinate of the head of state that they just elected or adopted earlier.
Strictly speaking, the head of state, namely the monarchy, becomes the head, or leader of the organ. So the king or monarch is not a representative of the voters. Thus the power then becomes large or very broad, because it is not only powerful in the field of government, but also in the field of legislation.
An example of what Wahl-monarchie is calling is : The German Empire, where the Roman kings were elected by electing kings. Also, for example, Poland, which is not really a monarchy, but is an aristocratic republic, where the head of state is elected by the electoral kings, and has the title of king.
It has been said that Kranenburg could not accept Jellinek's teachings or opinions regarding the difference between monarchy and republic, and this is primarily aimed at the criteria used by Jellinek in this distinction. Because in his teachings there are weaknesses or objections.
The weakness or objection of Jellinek's opinion, among others, turns out that after Jellinek set the criteria as mentioned above, namely the way the state will be formed, it is very strange if he, Jellinek, classified the British state into a monarchy, because if Jellinek was consistent with his theory, he should have called the United Kingdom the term republic, and naturally also included the British state into the republican class.
This is because in England the formation of the state will in the form of a law does not occur automatically physical, meaning that it is not only made, or determined by a single person, but it occurs juridically, namely that the formation of laws in England is carried out by the King in Parliament, by the Crown together with the parliament, being meant by the Crown is the king and the the minister.
The situation is the same as in the UK, among others, in the following countries: Sweden, Norway, Denmark, the Netherlands and Belgium. Of these countries Jellinek should also call it the republic. So it is thus clear that according to the theory of Jellinek, constitutional monarchy states belong to the republic species.
So if so, in England, it means that the law is the work of the Crown together with the parliament, this means that the formation of the will of the British state is not carried out by one person alone, but is carried out by a council consisting of: the king, ministers, and parliament.
So not physically but juridically. So if Jellinek's criteria were applied consistently, Jellinek had to say that England was a republic.
But Jellinek still maintains that England is a monarchy, so he maintains his opinion that the formation of the will of the British State occurs physically, because in England, according to Jellinek, what is important or the main thing in making and or stipulating a law is the king.
Why is that ? It is true, Jellinek said, that the making of laws in England was carried out by the king, the ministers and the parliament.
However, the emphasis and the main role is the king. Because the parliament can only gather and convene to make drafts, laws, if the king wishes, and the king expresses his will by summoning the parliament to convene and drafting the laws desired by the king.
So, just before the parliament will meet, there must be a call from the king. The right or authority of the king to summon parliament to convene, this is called versammlungsrecht. This is the starting point or the beginning of the making of a law in England.
Meanwhile, the king will also be the final point, because after the draft law is drafted by the parliament, the law does not yet have the power to take effect, if the king has not given a royal assent, or royal proclamation, it means that the law has not been ratified by king.
This is the ending point. So the focus of the making of a law lies with the king, thus actually the highest power in making a law rests with the king. This means that the king determines the process of making a law, so also determines the formation of the will of the state. Then England is a monarchy.
Thus Jellinek then means distinguishing between the content or material of the law and the orders contained in the law, meaning an order to treat laws; because although it is true that the content or material of the law stipulates the Crown together with the parliament, the order to treat the law remains in the hands of the king. So the process of forming laws in England starts with the king and ends with the king as well.
If the king does not want to do this, it means that the king does not want to use versammlungsrecht, namely inviting the parliament to convene, and especially if the king does not want to give a royal assent or royal proclamation, then there is no power in the world that can force it.
Therefore it can be said that England is still a monarchy, because its laws, so it also means that the will of the country, occurs or is composed in the physical king's body with his physical.
Such is Jellinek's opinion. But against Jellinek's opinion Kranenburg still could not accept and defend the objections that had been raised with said: Whereas if the king is the center of the formation of laws, it becomes the starting point and the end point of forming the law, so it is a determining factor. If that was the case, the king himself should be able to make laws without a parliament.
But this is not the case, the king cannot make laws alone, without the participation of the parliament, because with one royal proclamation alone, the king cannot make and treat laws.
Because it is the king together with the minister and parliament who determines it, so it is not the king who determines it alone. So the will, which is in the form of law, is not the will of the state which is physical, but the will of the state which is juridical, because in the formation of this law the king, minister and parliament act together, in the sense that there is an agreement of will, and constitute a council.
Apart from that what Jellinek stated that the king has the authority to reject the laws that have been established by the parliament, in the sense that the king does not want to give a royal proclamation and that no power in this world can force the king, this is not true.
Because until now in the history of British administration, according to the convention, the king had never rejected a proposed law that had been passed by parliament. Thus Jellinek's teaching contradicts historical reality.
Indeed it is, that Jellinek's opinion is completely contrary to the real situation. Because the reality is very different from what Jellinek put forward, if the criteria are applied consequently. For example, regarding the picture of the formation of laws as described by Jellinek in England, this can also happen in the country of Indonesia, namely the Government c.q.
The President submits the Draft Law to the House of Representatives, after the Draft Law is approved by the House of Representatives then it is ratified by the President and promulgated so that the law has the power to take effect.
So in England it requires a royal assistant or royal proclamation of the king, while in our country it requires approval from the head of state.
So, is our country in the form of a monarchy ? So it is clear that for the current situation the criteria proposed by Jellinek are no longer tenable. This is partly due to a shift or change in the notion of monarchy from its original meaning. Initially the notion of monarchy referred to a country in which the governmental power in the country was only held by one person, whatever the name, whether the head of the state used the title king or prince, this was not decisive.
But the definition of monarchy for the modern era refers to the existence of a state institution that has a special position, namely a state institution called the head of state, which has a special position different from that of other heads of state.
Its specialty is that this institution as a position can be inherited.
So, strictly speaking, the head of state of the state, which is in the form of a monarchy, has an inheritance position. So what is more in line with the current situation, to distinguish monarchy and republic if we use the criteria put forward by Leon Duguit.
Leon Duguit, in distinguishing or differentiating between the form of a monarchical state and the republic the criteria used are the method or system of appointing the head of state. The definition of appointment or appointment is very broad, because it can mean election, inheritance, expropriation and so on.
Based on the above criteria, according to Leon Duguit, a country is called a monarchy if the head of state is appointed or appointed based on the inheritance system. Strictly speaking, the head of state gets his position because of the legacy of the head of state who directly preceded him. So here there is a state institution, namely the position of the head of state, which can be inherited.
Regarding who has the authority to obtain the inheritance, of course the state itself regulates it, because of course in many cases there are attributes that must be fulfilled.
Whereas a country is called a republic, if the head of state is appointed or appointed not on the basis of the inheritance system, for example by means of election, expropriation, appointment and so on.
If we compare Jellinek's theory with Leon Duguit's theory, for the current situation, Leon Duguit's theory is more in line with the actual situation, although it must also be admitted that in reality what happened was not as easy as Leon Duguit described. above. Because in reality, many things are additional postulates or attributes of a head of state from a state called the monarchy.
Strictly speaking, a person can become head of state not only because he gets his position because of inheritance, but besides that there are still some conditions, which have become a convention, all of which must be fulfilled in a monarchical state. However, perhaps Leon Duguit's teachings, especially regarding his criteria, can be used as a basis for differences between monarchy and republic.
It should also be noted here that Leon Duguit in his description uses the term form of government, forme de gouvernement, instead of using the term form of state, forme de staat. Thus he used the terms monarchy and republic in the sense of monarchy and republican government.
So according to Leon Duguit, monarchy and republic are not forms of state, but they are forms of government.
Meanwhile, in general, according to Jellinek's teachings, what is meant by the form of the state is a monarchy and a republic. If what is meant by the form of government is about a further legal system, which is obtained both within the monarchy and within the republic.
For example, the form of government of the republic is :
- Republic with a system of direct people's government, or with a referendum system.
- Republic with a system of government representatives of the people, or with a parliamentary system.
- Republic with a system of separation of powers, or with a presidential system.
While the forms or systems of government rather than a monarchy, are :
- Monarchy with absolutism government system.
- Limited monarchy.
- Constitutional monarchy.
Then what does Leon Duguit mean by that state? What is meant by that is :
- Unitary state.
- The state of the union.
- The United States.
Above have described the teachings of two scholars, Georg Jellinek and Leon Duguit, who each have put forward the differences between the republic and the monarchy, according to their different systems.
In Jellinek's teachings, it is clear that he categorically enters the state monarchy in which the king or head of state is elected, which is then called Wahl-monarchi.
But in the teachings of Leon Duguit, a country in which the king or head of state is appointed by means of an electoral system is not a monarchy, even though the fact is that the country is the light of a kingdom, it looks like the German empire, if Leon Duguit is hesitant to call it a republic. it is called the aristocratic republic whose head of state has the title of king.
But in any case, it is presumably for the situation in modern times that Leon Duguit's teachings are somewhat appropriate and closer to the real situation. However, we must not be too guided by the classification system, fundamentally for every era and in every development, because we must always pay attention to the changes that always occur, it seems that in the system of tools that are always changing their function.
It means that the head of state, for example, has his duties or functions from time to time having undergone major changes.
