64. That 'sovereignty of the people,' which Locke looks upon as
held in reserve after its original exercise in the establishment
of government, only to be asserted in the event of a legislature
proving false to its trust, Rousseau supposes to be in constant
exercise. Previous writers had thought of the political society
or commonwealth, upon its formation by compact, as instituting a
sovereign. They differed chiefly on the point whether the society
afterwards had or had not a right of displacing an established
sovereign. Rousseau does not think of the society, _civitas_ or
commonwealth, as thus instituting a sovereign, but as itself in the
act of its formation becoming a sovereign and ever after continuing
so.
65. In his conception of a state of nature, Rousseau does not differ
from Locke. He conceives the motive for passing out of it, however,
somewhat differently and more after the manner of Spinoza. With
Locke the motive is chiefly a sense of the desirability of having
an impartial judge, and efficient enforcement of the law of nature.
According to Rousseau, some pact takes place when men find the
hindrances to their preservation in a state of nature too strong for
the forces which each individual can bring to bear against them.
This recalls Spinoza's view of the 'jus in naturam' as acquired by a
combination of the forces of individuals in civil society.
66. The 'problem of which the social contract is a solution' Rousseau
states thus: 'To find a form of association which protects with the
whole common force the person and property of each associate, and in
virtue of which everyone, while uniting himself to all, only obeys
himself and remains as free as before.' (_Contrat Social_, I, vi.)
The terms of the contract which solves this problem Rousseau states
thus: 'Each of us throws into the common stock his person and all
his faculties under the supreme direction of the general will; and
we accept each member as an individual part of the whole.... There
results from this act of association, in place of the several persons
of the several contracting parties, a collective moral body, composed
of as many members as there are voices in the assembly, which body
receives from this act its unity, its common self, its life, and its
will.... It is called by its members a _state_ when it is passive, a
_sovereign_ when it is active, a _power_ when compared with similar
bodies. The associates are called collectively a _people_, severally
_citizens_ as sharing in the sovereign authority, _subjects_ as
submitted to the laws of the state.' (_Ib_.) Each of them is under
an obligation in two relations, 'as a member of the sovereign body
towards the individuals, and as a member of the state towards the
sovereign.' All the subjects can by a public vote be placed under a
particular obligation towards the sovereign, but the sovereign cannot
thus incur an obligation towards itself. It cannot impose any law
upon itself which it cannot cancel. Nor is there need to restrict
its powers in the interest of the subjects. For the sovereign body,
being formed only of the individuals which constitute it, can have no
interest contrary to theirs. 'From the mere fact of its existence,
it is always all that it ought to be' (since, from the very fact of
its institution, all merely private interests are lost in it). On
the other hand, the will of the individual (his particular interest
as founded upon his particular desires) may very well conflict with
that general will which constitutes the sovereign. Hence the social
pact necessarily involves a tacit agreement, that anyone refusing to
conform to the general will shall be forced to do so by the whole
body politic; in other words, 'shall be forced to be free,' since the
universal conformity to the general will is the guarantee to each
individual of freedom from dependence on any other person or persons.
(I, vii.)
67. The result to the individual may be stated thus. He exchanges
the natural liberty to do and get what he can, a liberty limited by
his relative strength, for a liberty at once limited and secured by
the general will; he exchanges the mere possession of such things
as he can get, a possession which is the effect of force, for a
property founded on a positive title, on the guarantee of society. At
the same time he becomes a moral agent. Justice instead of instinct
becomes the guide of his actions. For the moral slavery to appetite
he substitutes the moral freedom which consists in obedience to a
self-imposed law. Now for the first time it can be said that there is
anything which he _ought_ to do, as distinguished from that which he
is _forced_ to do. (I, viii.)
68. Such language makes it clear that the sovereignty of which
Rousseau discusses the origin and attributes, is something
essentially different from the supreme coercive power which previous
writers on the 'jus civile' had in view. A contemporary of Hobbes had
said that
'there's on earth a yet auguster thing,
Veiled though it be, than Parliament and King.'
It is to this 'auguster thing,' not to such supreme power as English
lawyers held to be vested in 'Parliament and King,' that Rousseau's
account of the sovereign is really applicable. What he says of it is
what Plato or Aristotle might have said of the θεῖος νοῦς, [1] which
is the source of the laws and discipline of the ideal polity, and
what a follower of Kant might say of the 'pure practical reason,'
which renders the individual obedient to a law of which he regards
himself, in virtue of his reason, as the author, and causes him to
treat humanity equally in the person of others and in his own always
as an end, never merely as a means. But all the while Rousseau
himself thinks that he is treating of the sovereign in the ordinary
sense; in the sense of some power of which it could be reasonably
asked how it was established in the part where it resides, when and
by whom and in what way it is exercised. A reader of him who is more
or less familiar with the legal conception of sovereignty, but not at
all with that of practical reason or of a 'general will.' a common
ego, which wills nothing but what is for the common good, is pretty
sure to retain the idea of supreme coercive power as the attribute of
sovereignty, and to ignore the attribute of pure disinterestedness,
which, according to Rousseau, must characterise every act that can be
ascribed to the sovereign.
[1] [Greek θεῖος νοῦς (theios nous) = divine mind or intelligence Tr]
69. The practical result is a vague exaltation of the prerogatives
of the sovereign people, without any corresponding limitation of the
conditions under which an act is to be deemed that of the sovereign
people. The justifiability of laws and acts of government, and of
the rights which these confer, comes to be sought simply in the fact
that the people wills them, not in the fact that they represent a
true 'volonté générale,' an impartial and disinterested will for the
common good. Thus the question of what really needs to be enacted
by the state in order to secure the conditions under which a good
life is possible, is lost sight of in the quest for majorities;
and as the will of the people in any other sense than the measure
of what the people will tolerate is really unascertainable in the
great nations of Europe, the way is prepared for the sophistries of
modern political management, for manipulating electoral bodies, for
influencing elected bodies, and procuring plébiscites.
70. The incompatibility between the ideal attributes which Rousseau
ascribes to the sovereign and any power that can actually be
exercised by any man or body of men becomes clearer as we proceed. He
expressly distinguishes 'sovereignty' from power, and on the ground
of this distinction holds that it cannot be alienated, represented,
or divided. 'Sovereignty being simply the exercise of the general
will can never be alienated, and the sovereign, who is only a
collective being, can only be represented by himself. Power can be
transmitted, but not will.' (II, i.) In order to the possibility of a
representation of the general will, there must be a permanent accord
between it and the individual will or wills of the person or persons
representing it. But such _permanent_ accord is impossible. (_Ib_.)
Again, a general will is from the nature of the case indivisible.
It is commonly held to be divided, not, indeed, in respect of its
source, but in respect of the objects to which its acts are directed,
e.g. into legislative and executive powers; into rights of taxation,
of war, of justice, &c. But this supposed division of sovereign
powers or rights implies that 'what are only emanations from the
sovereign authority are taken to be parts of it.' (II, ii.) The only
exercise of sovereign power, properly so called, is in legislation,
and there is no proper act of legislation except when the whole
people comes to a decision with reference to the whole people. Then
the matter decided on is as general as the will which decides on it;
and this is what constitutes a law. (II, vi.) By this consideration
several questions are answered. Whose office is it to make laws?
It is that of the general will, which can neither be alienated nor
represented. Is the prince above the law? The answer is, He is a
member of the state, and cannot be so. Can the law be unjust? No one
can be unjust to himself: therefore not the whole people to the whole
people. How can we be free and yet subject to the laws? The laws are
the register of our own will. (_Ib_.) Laws, in short, are properly
those general 'conditions of civil association' which the associates
impose on themselves. Where either of the specified conditions is
lacking, where either it is not the universal will from which an
ordinance proceeds or it is not the whole people to which it relates,
it is not a law but a decree, not an act of sovereignty but of
magistracy. (_Ib_.)
71. This leads to a consideration of the nature and institution of
magistracy or government. (III, i.) The government is never the same
as the sovereign. The two are distinguished by their functions,
that of the one being legislative, that of the other executive.
Even where the people itself governs, its acts of government must
be distinguished from its acts of sovereignty, the former having
a particular, the latter a general, reference. Government is the
exercise according to law of the executive power, and the 'prince'
or 'magistrate' is the man or body of men charged with this
administration; 'a body intermediary between the subjects and the
sovereign, charged with the execution of the laws, and with the
maintenance of civil and political freedom' (_Ib_.) Where all or
most of the citizens are magistrates, or charged with the supreme
functions of government, we have a democracy; where a few, an
aristocracy; where one is so charged, a monarchy. (III, iii.) The
differences depend, not as Hobbes and others had supposed, on the
quarter where the sovereignty resides--for it must always reside in
the whole body of people--but on that in which government resides.
The idea of government is that the dominant will of the prince should
be the general will or law, that it should be simply the public
force by which that general will is brought to bear on individuals
or against other states, serving the same purpose in the state as
the union of soul and body in the individual (III, i.); and this
idea is most likely to be satisfied under a democracy. There, the
general will (if there _is_ a general will, which the democracy is
no guarantee for there being, according to Rousseau's distinction
between the 'volonté générale' and 'volonté de tous,' of which more
hereafter) cannot fail to coincide with the dominant will of the
government. The prevalence of particular interests may prevent there
being a will at all of the kind which Rousseau would count general or
truly sovereign, but they cannot be more prevalent in the magistracy,
constituted by the whole people, than in the same people acting
in the way of legislation. In a democracy, therefore, the will of
the sovereign, so far as there is a sovereign in the proper sense,
necessarily finds expression in the will of the magistracy. On the
other hand, though under either of the other forms of government
there is danger of collision between sovereign and government, yet
the force of the government is greater than in a democracy. It is
greatest when the government is a monarchy, because under all other
forms there is more or less discrepancy between the individual wills
of the several persons composing the government, as directed to the
particular good of each, and the corporate will of the government of
which the object is its own efficiency, and under a monarchy this
source of weakness is avoided. (III, ii.) As there is more need of
force in the government in proportion to the number of subjects whose
particular wills it has to control, it follows that monarchy is best
suited to the largest, democracy to the smallest states. (III, iii.)
72. As to the institution of government, Rousseau maintains
strenuously that it is not established by contract. 'There is only
one contract in the state, viz. that of the original association;
and this excludes every other. No other public contract can be
imagined which would not be a violation of the first.' (III, xvi.)
Even when government is vested in an hereditary body, monarchic
or aristocratic, this is merely a provisional arrangement, made
and liable to be reversed by the sovereign, whose officers the
governors are. The act by which government is established is twofold,
consisting firstly of the passing of a law by the sovereign, to the
effect that there shall be a government; secondly, of an act in
execution of this law, by which the governors--the 'magistrates'--are
appointed. But it may be asked, How can the latter act, being one not
of sovereignty but of magistracy (for it has a particular reference
in the designation of the governors), be performed when as yet there
is no government? The answer is that the people resolves itself
from a sovereign body into a body of magistrates, as the English
Parliament resolves itself constantly from a legislative body into
a committee. In other words, by a simple act of the general will a
democracy is for the time established, which then proceeds either to
retain the government in its own hands, or to place it in those of an
officer, according to the form in which the sovereign has decided to
establish the government. (III, xvii.) Acts similar to that by which
the government was originally constituted need to be periodically
repeated in order to prevent the government from usurping the
functions of the sovereign, i.e. the function of legislation.
(Could this usurpation occur under a democracy?) In order that the
sovereignty may not fall into abeyance, it must be exercised, and
it can only be exercised in assemblies of the whole people. These
must be held periodically, and at their opening two questions ought
to be submitted; one, whether it pleases the sovereign to maintain
the present form of government; the other, whether it pleases the
people to leave the administration in the hands of those at present
charged with it. (III, xviii.) Such assemblies are entitled to
revise and repeal all previously enacted laws. A law not so repealed
the sovereign must be taken tacitly to confirm, and it retains
its authority. But as the true sovereign is not any law but the
general will, no law, even the most fundamental, can be exempt from
liability to repeal. Even the social pact itself might legitimately
be dissolved, by agreement of all the citizens assembled. (_Ib_.)
(Whether unanimity is necessary for the purpose is not specified.)
Without such assemblies there can be no exercise of the general will
(which, as before stated, cannot be represented), and consequently
no freedom. The English people, e.g., is quite mistaken in thinking
itself free. It is only free while the election of members of
Parliament is going on. As soon as they are elected, it is in
bondage, it is nothing. In the short moments of its freedom it makes
such a bad use of it that it well deserves to lose it. (III, xv.)
73. It appears from the above that, according to Rousseau, the
general will, which is the true sovereign, can only be exercised
in assemblies of the whole people. On the other hand, he does not
hold that an act of such an assembly is necessarily an act of the
general will. After telling us that the 'general will is always
right, and always tends to the public good,' he adds, 'but it does
not follow that the deliberations of the people have always the same
rectitude.... There is often a great difference between the will
of all and the general will. The latter only looks to the common
interest; the other looks to private interests, and is only a sum of
the wills of individuals.' (II, iii.) Again (II, iv.), 'that which
generalises the will is not so much the number of voices as the
common interest which unites them.' He holds apparently that in the
assembly of the whole people, if they had sufficient information, and
if no minor combinations of particular interests were formed within
the entire body, the difference between the wills of individuals
would neutralise each other, and the vote of the whole body would
express the true general will. But in fact in all assemblies there
is at least a liability to lack of information and to the formation
of cliques; and hence it cannot be held that the vote of the
assembly necessarily expresses the general will. Rousseau, however,
does not go so far as to say that unless the law is actually such
as contributes to the common good, it is not an expression of the
general will. The general will, according to him, always aims at
or wills the common good, but is liable to be mistaken as to the
means of attaining it.' It is always right, but the judgment which
guides it is not always enlightened.... Individuals see the good
which they reject; the public wills the good which it does not
see.' (II, vi.) Hence the need of a guide in the shape of a great
lawgiver. Apparently, however, the possible lack of enlightenment on
the part of the general will does not, in Rousseau's view, prevent
its decisions from being for the public good. In discussing the
'limits of the sovereign power' he maintains that there can be no
conflict between it and the natural right of the individual, because,
'although it is only that part of his power, his goods, his freedom,
of which the use is important to the community, that the individual
transfers to the sovereign by the social pact, yet the sovereign
alone can be judge of the importance'; and the sovereign 'cannot
lay on the subjects any constraint which is not for the good of the
community.' 'Under the law of reason' (which is thus identified with
the general will) 'nothing is done without a cause, any more than
under the law of nature.' (II, iv.)
74. But though even an unenlightened general will is the general
will still, and (as we are left to infer) cannot in its decisions
do otherwise than promote the public good, Rousseau distinctly
contemplates the possibility of the general will being so overpowered
by particular interests that it finds no expression in the votes of
a popular assembly, though the assembly be really one of a whole
people, and the vote of the majority is duly taken. (IV, i.) In such
cases it is not that the general will is 'annihilated or corrupted;
it is always constant, unalterable, and pure.' Even in the individual
whose vote is governed by his private interest the general will
is not extinct, nor is he unaware either of what the public good
requires or of the fact that what is for the public good is also for
his own. But his share in the public evil to which he knows that
his vote will contribute, seems nothing by the side of the special
private good which he hopes to gain. By his vote, in short, he does
not answer the question, Is so and so for the advantage of the state?
but, Is it for the advantage of this particular man or party? (Ib.)
75. The test of the dominance of the general will in assemblies of
the people is an approach to unanimity. 'Long debates, discussions,
tumult, indicate the ascendency of particular interests and the
decline of the state.' (IV, ii.) Rousseau, however, does not venture
to say that absolute unanimity in the assembly is necessary to an
expression of the general will, or to give a law a claim upon the
obedience of the subjects. This would have been to render effectual
legislation impossible. Upon the theory, however, of the foundation
of legitimate sovereignty in consent, the theory that the natural
right of the individual is violated unless he is himself a joint
imponent of the law which he is called to obey, it is not easy to see
what rightful claim there can be to the submission of a minority.
Rousseau so far recognises the difficulty that he requires unanimity
in the original compact. (IV, ii.) If among those who are parties
to it there are others who oppose it, the result is simply that
the latter are not included in it. 'They are strangers among the
citizens.' But this does not explain how they are to be rightfully
controlled, on the principle that the only rightful control is
founded on consent; or, if they are not controlled, what is the
value of the 'social compact.' How can the object of the pact be
attained while those who are bound by it have these 'strangers'
living among them who are not bound by it, and who, not being bound
by it, cannot be rightfully controlled? The difficulty must recur
with each generation of the descendants of those who were parties to
the original pact. The parties to the pact, it is true, have no right
to resist the general will, because the pact is _ex hypothesi_ to the
effect that each individual, in all things of common concern, will
take the general will for his own. The true form, therefore, of the
question upon which each party to the pact should consider himself
to be voting in the assembly is, as Rousseau puts it, not 'Is the
proposed measure what I wish for, or what I approve, or no?' but 'Is
it in conformity with the general will?' If, having voted upon this
question, he finds himself in a minority, he is bound to suppose that
he is mistaken in his views of the general will, and to accept the
decision of the majority as the general will which, by the pact, he
is bound to obey. So far all is consistent; though how the individual
is to be answered if he pleads that the vote of the assembly has been
too much biassed by particular interests to be an expression of the
general will, and that therefore it is not binding on him, does not
appear.
76. But after the first generation of those who were parties to
the supposed original compact, what is to settle whether anyone
is a party to it or no? Rousseau faces the question, but his only
answer is that when once the state is instituted, consent is implied
in residence; 'to dwell on the territory is to submit to the
sovereignty.' (IV, ii.) This answer, however, will scarcely stand
examination. Rousseau himself does not consider that residence in
the same region with the original parties to the pact renders those
so resident also parties to it. Why should it do so, when the pact
has descended to a later generation? It may be argued of course that
everyone residing in a settled society, which secures him in his
rights of person and property, has the benefit of the society from
the mere fact of his residence in it, and is therefore morally bound
to accept its laws. But this is to abandon the doctrine of obligation
being founded on consent. Residence in a territory governed by a
certain sovereign can only be taken to imply consent to the rule of
that sovereign, if there is any real possibility of relinquishing it,
and this there can scarcely ever be.
77. Rousseau certainly carried out the attempt to reconcile
submission to government with the existence of natural rights
antecedent to the institution of government, by the hypothesis of a
foundation of government in consent, more consistently than any other
writer; and his result shows the hopelessness of the attempt. To the
consistency of his theory he sacrifices every claim to right on the
part of any state except one in which the whole body of citizens
directly legislates, i.e. on the part of nearly all states then or
now existing; and finally he can only justify the control of the
minority by the majority in any state whatever by a subterfuge. It
does not follow, however, because the doctrine of natural rights and
the consequent conception of government as founded on compact are
untenable, that there is no truth in the conception of the state
or sovereign as representing a general will, and as authorised or
entitled to obedience on that account. It is this conception, as the
permanently valuable thing in Rousseau, that we have now further to
consider.
78. The first remark upon it which suggests itself is that, as
Rousseau puts the matter, there may be an independent political
society in which there is no sovereign power at all, or in which, at
any rate, it is not exercised. The sovereign is the general will.
But the general will can only be exercised through the assembly of
a whole people. The necessary conditions of its exercise, then,
in Rousseau's time, were only fulfilled in the Swiss cantons and
(perhaps) in the United Provinces. In England they were fulfilled in
a way during the time of a general election. But even where these
conditions were fulfilled, it did not follow that the general will
was put in force. It might be overpowered, as in the Roman comitia,
by particular interests. Is it then to be understood that, according
to Rousseau, either there can be independent states without any
sovereignty in actual exercise, or that the European states of his
time, and equally the great states of the present day (for in none
of these is there any more exercise of the general will than in the
England of his time), are not properly states at all?
79. We may try to answer this question by distinguishing sovereign
_de facto_ from sovereign _de jure_, and saying that what Rousseau
meant was that the general will, as defined by him and as exercised
under the conditions which he prescribes, was the only sovereign _de
jure_, but that he would have recognised in the ordinary states of
his time a sovereign _de facto_; and that in the same way, when he
describes the institution of government as arising out of a twofold
act consequent on the original pact (an act in which the sovereign
people first decides that there shall be a government, and then,
not as a sovereign people, but as a democratic magistracy, decides
in what hands the government shall be placed), he does not conceive
himself to be describing what has actually taken place, but what is
necessary to give a government a moral title to obedience. Whether
Rousseau himself had this distinction in view is not always clear.
At the outset he states his object thus: 'Man is born free, and
everywhere he is in fetters. How has this change come about? I do
not know. What can render it legitimate? That is a question which
I deem myself able to answer.' (I, i.) The answer is the account
of the establishment of a sovereign by social pact. It might be
inferred from this that he considered himself in the sequel to be
delineating transactions to the actual occurrence of which he did
not commit himself, but which, if they did occur, would constitute
a duty as distinct from a physical necessity of submission on the
part of subjects to a sovereign, and to which some equivalent must
be supposed, in the shape of a tacit present convention on the part
of the members of a state, if their submission is to be matter of
duty as distinct from physical necessity, or is to be explained as
a matter of right by the ostensible sovereign. This, however, would
merely be an inference as to his meaning. His actual procedure is to
describe transactions, by which the sovereignty of the general will
was established, and by which it in turn established a government, as
if they had actually taken place. Nor is he content with supposing a
tacit consent of the people as rendering subjection legitimate. The
people whose submission to law is to be 'legitimate' must actually
take part in sovereign legislative assemblies. It is very rarely that
he uses language which implies the possibility of a sovereign power
otherwise constituted. He does indeed speak [1] of the possibility
of a prince (in the special meaning of the term, as representing
the head of the executive) usurping sovereignty, and speaks of the
sovereignty thus usurped as existing _de facto_, not _de jure_; but
in no other connection (so far as I have observed) does he speak of
anything short of the 'volonté générale' exercised through the vote
of an assembled people as sovereign at all. And the whole drift of
his doctrine is to show that no sovereign, otherwise constituted, had
any claim on obedience. There was no state in Europe at his time in
which his doctrine would not have justified rebellion, and even under
existing representative systems the conditions are not fulfilled
which according to him are necessary to give laws the claim on our
obedience which arises from their being an expression of the general
will. The only system under which these conditions could be fulfilled
would be one of federated self-governing communes, small enough to
allow each member an active share in the legislation of the commune.
It is probably the influence of Rousseau that has made such a system
the ideal of political enthusiasts in France.
[1] 'If it happened that the prince had a private will more active
than that of the sovereign, and that he made use of the public
force placed in his hands as the instrument of this private will,
there would result, so to speak, two sovereignties, one _de jure_,
the other _de facto_; but from that moment the social union would
disappear, and the body politic would be dissolved.' (III, i.) 'When
the prince ceases to administer the state according to the laws, and
usurps the sovereign power ... then the state in the larger sense is
dissolved, and there is formed another within it, composed only of
the members of the government ... the social pact is broken ... and
all the ordinary citizens return as a matter of right to their state
of natural liberty, and are merely forced, but not obliged, to obey.'
(III, X.)
F. _SOVEREIGNTY AND THE GENERAL WILL._ Rousseau and Austin.
80. The questions then arise (1) whether there is any truth in
Rousseau's conception of sovereignty as founded upon a 'volonté
générale' in its application to actual sovereignty. Does anything
like such a sovereignty exist in the societies properly called
political? (2) Is there any truth in speaking of a sovereignty _de
jure_ founded upon the 'volonté générale? (3) If there is, are we to
hold with Rousseau that this 'will' can only be exercised through the
votes of a sovereign people?
81. (1) The first question is one which, if we take our notions
of sovereignty from such writers as Austin, we shall be at first
disposed decidedly to negative. Austin is considered a master of
precise definition. We may begin, therefore, by looking to his
definition of sovereignty and the terms connected with it. His
general definition of law runs as follows: 'A law, in the most
general and comprehensive acceptation in which the term, in its
literal meaning, is employed, may be said to be a rule laid down
for the guidance of an intelligent being by an intelligent being
having power over him.' [1] These rules are of two kinds: (1) laws
set by God to men, or the law of nature; and (2) laws set by men to
men, or human law. We are only concerned with the latter, the human
laws. These are again distinguished into two classes, according as
they are or are not established by political superiors. 'Of the laws
or rules set by men to men, some are established by _political_
superiors, sovereign and subject; by persons exercising supreme and
subordinate _government_, in independent nations, or independent
political societies' (pp. 88 and 89). 'The aggregate of the rules
established by political superiors is frequently styled _positive_
law, or law existing _by position_' (p. 89). This is distinguished
from 'positive morality.' Laws are further explained as a species of
commands. A command is a signification of desire, distinguished by
the fact that the party to whom it is addressed is liable to evil
from the party expressing the desire in case he does not comply
with it (p. 91). This liability to evil forms the sanction of the
command. Where a command 'obliges _generally_ to acts or forbearances
of _a class_, it is a law' (p. 95). 'Every positive law, or every
law simply and strictly so called, is set by a sovereign person or a
sovereign body of persons to a member or members of the independent
political society wherein that person or body is sovereign or
supreme. Or (changing the expression) it is set by a monarch, or
sovereign member, to a person or persons in a state of subjection to
its author. Even though it sprung directly from another fountain or
source, it is a positive law, or a law strictly so called, by the
institution of that present sovereign in the character of political
superior. Or (borrowing the language of Hobbes) the legislator is he,
not by whose authority the law was first made, but by whose authority
it continues to be a law' (pp. 225 and 226).
'The notions of sovereignty and independent political society may be
expressed concisely thus. If a _determinate_ human superior, _not_ in
a habit of obedience to a like superior, receive _habitual_ obedience
from the _bulk_ of a given society, that determinate superior is
sovereign in that society, and the society (including the superior)
is a society political and independent' (p. 226).
'In order that a given society may form a society political and
independent, the two distinguishing marks which I have mentioned
above must unite. The _generality_ of the given society must be in a
_habit_ of obedience to a _determinate_ and _common_ superior; whilst
that determinate person, or determinate body of persons, must _not_
be habitually obedient to a determinate person or body. It is the
union of that positive with this negative mark which renders that
certain superior sovereign or supreme, and which renders that given
society (including that certain superior) a society political and
independent' (p. 227).
[1] _Lectures on Jurisprudence_, vol. i. p. 88 (edit. of 1869, in two
vols.)
82. It may be remarked in passing that, according to the above, while
every law implies a sovereign, from whom directly or indirectly
(through a subordinate political superior) it proceeds, it is not
necessary to a sovereign that his commands should take the form of
laws, as opposed to 'particular or occasional commands.' A superior
might signify his desires only in the form of such particular and
occasional commands, and yet there might be a habit of obedience to
him, and he might not be habitually obedient to any other person or
body; in which case he would be a 'sovereign.'
83. Austin's doctrine seems diametrically opposite to one which
finds the sovereign in a 'volonté générale,' because _(a)_ it only
recognises sovereignty in a _determinate_ person or persons, and
_(b)_ it considers the essence of sovereignty to lie in the power, on
the part of such determinate persons, to put compulsion without limit
on subjects, to make them do exactly as it pleases. [1] The 'volonté
générale,' on the other hand, it would seem, cannot be identified
with the will of any determinate person or persons; it can, indeed,
according to Rousseau, only be expressed by a vote of the whole body
of subject citizens; but when you have got them together, there is
no certainty that their vote does express it; and it does not--at
any rate necessarily--command any power of compulsion, much less
unlimited power. Rousseau expressly contemplates the possibility of
the executive power conflicting with and overbearing the general
will. Indeed, according to his view, it was the ordinary state
of things; and though this view may be exaggerated, no one could
maintain that the 'general will,' in any intelligible sense of the
words, had always unlimited force at its command.
[1] Cf. Maine's statement of Austin's doctrine in _The Early History
of Institutions_, pp. 349 and 350: 'There is in every independent
political community--that is, in every political community not in the
habit of obedience to a superior above itself--some single person or
some combination of persons which has the power of compelling the
other members of the community to do exactly as it pleases. This
single person or group--this individual or this collegiate sovereign
(to employ Austin's phrase) may be found in every independent
political community as certainly as the centre of gravity in a mass
of matter. If the community be violently or voluntarily divided into
a number of separate fragments, then, as soon as each fragment has
settled down (perhaps after an interval of anarchy) into a state of
equilibrium, the sovereign will exist, and with proper care will be
discoverable in each of the now independent portions. The sovereignty
over the North American colonies of Great Britain had its seat in
one place before they became the United States, in another place
afterwards; but in both cases there was a discoverable sovereign
somewhere. This sovereign, this person or combination of persons,
universally occurring in all independent political communities, has
in all such communities one characteristic, common to all the shapes
sovereignty may take, the possession of irresistible force, not
necessarily exerted, but capable of being exerted. According to the
terminology preferred by Austin, the sovereign, if a single person,
is or should be called a monarch; if a small group, the name is an
oligarchy; if a group of considerable dimensions, an aristocracy;
if very large and numerous, a democracy. Limited monarchy, a phrase
perhaps more fashionable in Austin's day than it is now, is abhorred
by Austin, and the government of Great Britain he classes with
aristocracies. That which all the forms of sovereignty have in
common is the power (the power but not necessarily the will) to put
compulsion without limit on subjects or fellow-subjects.'
84. The two views thus seem mutually exclusive, but perhaps it may
be by taking each as complementary to the other that we shall gain
the truest view of sovereignty as it actually exists. In those
states of society in which obedience is habitually rendered by the
bulk of society to some determinate superior, single or corporate,
who, in turn, is independent of any other superior, the obedience
is so rendered because this determinate superior is regarded as
expressing or embodying what may properly be called the general
will, and is virtually conditional upon the fact that the superior
is so regarded. It is by no means an unlimited power of compulsion
that the superior exercises, but one dependent in the long run, or
dependent for the purpose of insuring an _habitual_ obedience, upon
conformity to certain convictions on the part of the subjects as to
what is for their general interest. As Maine says (_Early History
of Institutions_, p. 359), 'the vast mass of influences, which we
may call for shortness moral, perpetually shapes, limits, or forbids
the actual direction of the forces of society by its sovereign.'
Thus, quite apart from any belief in the right of revolution, from
the view that the people in any state are entitled to an ultimate
sovereignty, or are sovereign _de jure_, and may withdraw either
legislative or executive power from the hands in which it has been
placed in the event of its being misused, it may fairly be held that
the ostensible sovereign--the determinate person or persons to whom
we can point and say that with him or them lies the ultimate power of
exacting habitual obedience from the people--is only able to exercise
this power in virtue of an assent on the part of the people, nor
is this assent reducible to the fear of the sovereign felt by each
individual. It is rather a common desire for certain ends--specially
the 'pax vitaeque securitas'--to which the observance of law or
established usage contributes, and in most cases implies no conscious
reference on the part of those whom it influences to any supreme
coercive power at all. Thus when it has been ascertained in regard to
any people that there is some determinate person or persons to whom,
in the last resort, they pay habitual obedience, we may call this
person or persons sovereign if we please, but we must not ascribe to
him or them the real power which governs the actions and forbearances
of the people, even those actions and forbearances (only a very
small part) which are prescribed by the sovereign. This power is a
much more complex and less determinate, or less easily determinable,
thing; but a sense of possessing common interests, a desire for
common objects on the part of the people, is always the condition of
its existence. Let this sense or desire--which may properly be called
general will--cease to operate, or let it come into general conflict
with the sovereign's commands, and the habitual obedience will cease
also.
85. If, then, those who adopt the Austinian definition of a sovereign
mean no more than that in a thoroughly developed state there must be
some determinate person or persons, with whom, in the last resort,
lies the recognised power of imposing laws and enforcing their
observance, over whom no legal control can be exercised, and that
even in the most thorough democracy, where laws are passed in the
assembly of the whole people, it is still with determinate persons,
viz. a majority of those who meet in the assembly, that this power
resides, they are doubtless right. So far they only need to be
reminded that the thoroughly developed state, as characterised by
the existence of such definite sovereignty, is even among civilised
people but imperfectly established. It is perfectly established (1)
where customary or 'common' or 'judge-made' law, which does not
proceed from any determinate person or persons, is either superseded
by express enactments that do proceed from such person or persons,
or (as in England) is so frequently trenched upon by statute law
that it may fairly be said only to survive upon sufferance, or to be
itself virtually enacted by the sovereign legislature; and (2) where
no question of right can be raised between local legislatures or
authorities and the legislature claiming to be supreme, as in America
before the war of secession, and as might perhaps be found to be the
case in Germany now, if on certain educational and ecclesiastical
matters the imperial legislature came to be at issue with the local
legislatures. But though the organisation of the state, even in
civilised and independent nations, is not everywhere complete, it
no doubt involves the residence with determinate persons, or a body
or bodies, of supreme i.e. legally uncontrolled power to make and
enforce laws. The term 'sovereign' having acquired this definite
meaning, Rousseau was misleading his readers when he ascribed
sovereignty to the general will. He could only be understood as
meaning, and in fact understood himself to mean, that there was no
legitimate sovereign except in the most thorough democracy, as just
described.
86. But the Austinians, having found their sovereign, are apt to
regard it as a much more important institution than--if it is to
be identified with a determinate person or persons--it really is;
they are apt to suppose that the sovereign, with the coercive power
(i.e. the power of operating on the fears of the subjects) which
it exercises, is the real determinant of the habitual obedience of
the people, at any rate of their habitual obedience in respect of
those acts and forbearances which are prescribed by law. But, as we
have seen, this is not the case. It then needs to be pointed out
that if the sovereign power is to be understood in this fuller, less
abstract sense, if we mean by it the real determinant of the habitual
obedience of the people, we must look for its sources much more
widely and deeply than the 'analytical jurists' do; that it can no
longer be said to reside in a determinate person or persons, but in
that impalpable congeries of the hopes and fears of a people, bound
together by common interests and sympathy, which we call the general
will.
87. It may be objected that this view of the general will, as that
on which habitual obedience to the sovereign really depends, is at
best only applicable to 'self-governing' communities, not to those
under a despotic sovereign. The answer is that it is applicable in
all forms of society where a sovereign in the sense above defined
(as a determinate person or persons with whom in the last resort
lies the recognised power of imposing laws and enforcing their
observance) really exists, but that there are many where there cannot
fairly be said to be any such sovereign at all; in other words, that
in all organised communities the power which practically commands
the habitual obedience of the people in respect of those acts and
forbearances which are enjoined by law or authoritative custom, is
one dependent on the general will of the community, but this power is
often not sovereign in the sense in which the ruler of an independent
state is sovereign. It may very well be that there is at the same
time another power merely coercive, a power really operating on
people simply through their fears, to which obedience is rendered,
and which is not in turn representative of a general will; but where
this is the case we shall find that such power is only in contact
with the people, so to speak, at one or two points; that their
actions and forbearances, as determined by law and custom, are in the
main independent of it; that it cannot in any proper sense be said
to be a sovereign power over them; at any rate, not in the sense in
which we speak of King, Lords, and Commons as sovereign in England.
88. Maine has pointed out (_Early History of Institutions_, Lecture
XIII.) that the great despotic empires of ancient times, excluding
the Roman, of which more shall be said directly, and modern empires
in the East were in the main tax-collecting institutions. They
exercise coercive force over their subjects of the most violent kind
for certain purposes at certain times, but they do not impose laws
as distinct from 'particular and occasional commands' nor do they
judicially administer or enforce a customary law. In a certain sense
the subjects render them habitual obedience, i.e. they habitually
submit when the agents of the empire descend on them for taxes and
recruits, but in the general tenor of their lives their actions and
forbearances are regulated by authorities with which the empire
never interferes,--with which probably it could not interfere
without destroying itself. These authorities can scarcely be said
to reside in a determinate person or persons at all, but, so far as
they do so, they reside mixedly in priests or exponents of customary
religion, in heads of families acting within the family, and in some
village-council acting beyond the limits of the family. Whether, in
such a state of things, we are to consider that there is a sovereign
power at all, and, if so, where it is to be considered to reside,
are chiefly questions of words. If complete uncontrolledness by a
stronger power is essential to sovereignty, the local authorities
just spoken of are not sovereign. The conquering despot could descend
on them and sweep them away, leaving anarchy in their place, and he
does compel them to be put in exercise for a particular purpose,
that of raising tribute or sometimes recruits. On the other hand,
these authorities, which represent a general will of the communities,
form the power which determines such actions and forbearances of the
individual as do not proceed from natural inclination. The military
ruler, indeed, is sovereign in the sense of possessing irresistible
coercive power, but in fact this power is only exercised within
narrow limits, and not at all in any legislative or judicial way. If
exercised beyond these limits and in conflict with customary law,
the result would be a general anarchy. The truest way of expressing
the state of the case is to say that, taking the term 'sovereign' in
the sense which we naturally associate with it, and in which it is
used by modern European writers on sovereignty, there is under such
conditions no sovereign, but that the practical regulation of life,
except during intervals of military violence and anarchy, rests with
authorities representing the general will, though these are to a
certain extent interfered with by an alien force.
89. The same account is applicable to most cases of foreign
dominion over a people with any organised common life of their own.
The foreign power is not sovereign in the sense of being a maker
or maintainer of laws. Law-making, under such conditions, there
is properly none. The subject people inherits laws, written or
unwritten, and maintains them for itself, a certain shelter from
violence being afforded by the foreign power. Such, in the main,
was the condition of North Italy, for instance, under Austrian
domination. Where this is the case, the removal of the coercive
power of the foreigner need not involve anarchy, or any violation of
established rights (such as Hobbes supposes to follow necessarily
from the deposition of an actual sovereign). The social order does
not depend on the foreign dominion, and may survive it. The question
whether in any particular case it actually can do so must depend on
the possibility of preventing further foreign aggression, and on the
question whether there is enough national unity in the subject people
to prevent them from breaking up into hostile communities when the
foreign dominion is removed.
90. It is otherwise where the foreign power is really a law-making
and law-maintaining one, and is sovereign in that proper sense, as
was the Roman Empire. But just so far as the Roman Empire was of
this sovereign, i.e. law-making and law-maintaining, character, it
derived its permanence, its hold on the 'habitual obedience' of
its subjects, from the support of the general will. As the empire
superseded customary or written laws of conquered countries, it
conferred rights of Roman citizenship, a much more perfect system of
protection in action and acquisition than the conquered people had
generally possessed before. Hence, while nothing could be further
removed from what Rousseau would have counted liberty than the
life of the citizens of the Roman Empire, for they had nothing to
do with making the laws which they obeyed, yet probably there was
never anv political system more firmly grounded on the good-will of
the subjects, none in the maintenance of which the subjects felt a
stronger interest. The British power in India exercises a middle
function between that of the Roman Empire and that of the mere
tax-collecting and recruit-raising empire with which the Roman Empire
has just been contrasted. It presents itself to the subject people
in the first place as a tax-collector. It leaves the customary law
of the people mostly untouched. But if only to a very small extent
a law-making power, it is emphatically a law-maintaining one. It
regulates the whole judicial administration of the country, but
applies its power generally only to enforce the customary law which
it finds in existence. For this reason an 'habitual obedience' may
fairly be said to be rendered by the Indian people to the English
government, in a sense in which it could not be said to be rendered
to a merely tax-collecting military power; but the 'habitual
obedience' is so rendered only because the English government
presents itself to the people, not merely as a tax-collector, but
as the maintainer of a customary law, which, on the whole, is the
expression of the general will. The same is true in principle of
those independent states which are despotically governed, in which,
i.e., the ultimate legislative power does not reside, wholly or in
part, with an assembly representing the people, or with the people
themselves; e.g. Russia. It is not the absolute coercive power of
the Czar which determines the habitual obedience of the people. This
coercive power, if put to the test as a _coercive_ power, would
probably be found very far from absolute. The habitual obedience
is determined by a system of law, chiefly customary, which the
administration controlled by the Czar enforces against individuals,
but which corresponds to the general sense of what is equitable and
necessary. If a despotic government comes into anything like habitual
conflict with the unwritten law which represents the general will,
its dissolution is beginning.
91. The answer, then, to the question whether there is any truth
in Rousseau's conception of sovereignty as founded upon a 'volonté
générale,' in its application to actual sovereignty, must depend on
what we mean by 'sovereign.' The essential thing in political society
is a power which guarantees men rights, i.e. a certain freedom of
action and acquisition conditionally upon their allowing a like
freedom in others. It is but stating the same condition otherwise
to speak of a power which guarantees the members of the society
these rights, this freedom of action and acquisition, impartially
or according to a general will or law. What is the lowest form in
which a society is fit to be called political, is hard to say. The
political society is more complete as the freedom guaranteed is more
complete, both in respect of the persons enjoying it and of the range
of possible action and acquisition over which it extends. A family
or a nomad horde could not be called a political society, on account
of the narrow range of the political freedom which they severally
guarantee. The nomad horde might indeed be quite as numerous as a
Greek state, or as the sovereign canton of Geneva in Rousseau's
time; but in the horde the range within which reciprocal freedom of
action and acquisition is guaranteed to the individual is exceedingly
small. It is the power of guaranteeing rights, defined as above,
which the old writers on sovereignty and civil government supposed to
be established by covenant of all with all, translating the common
interest which men have in the maintenance of such a power into an
imaginary historical act by which they instituted it. It was this
power that they had chiefly in view when they spoke of sovereignty.
92. It is to be observed, however, that the power may very well exist
and serve its purpose where it is not sovereign in the sense of being
exempt from any liability of being interfered with by a stronger
coercive power, such as that of a tax-collecting military ruler. The
occasional interference of the military ruler is so far a drawback
to the efficiency with which freedom of action and acquisition is
guaranteed, but does not nullify the general maintenance of rights.
On the other hand, when the power by which rights are guaranteed is
sovereign (as it is desirable that it should be) in the special sense
of being maintained by a person or persons, and wielding coercive
force not liable to control by any other human force, it is not
this coercive force that is the important thing about it, or that
determines the habitual obedience essential to the real maintenance
of rights. That which determines this habitual obedience is a power
residing in the common will and reason of men, i.e. in the will and
reason of men as determined by social relations, as interested in
each other, as acting together for common ends. It is a power which
this universal rational will exercises over the inclinations of
the individual, and which only needs exceptionally to be backed by
coercive force.
93. Thus, though it may be misleading to speak of the general will
as anywhere either actually or properly sovereign, because the term
'sovereign' is best kept to the ordinary usage in which it signifies
a determinate person or persons charged with the supreme coercive
function of the state, and the general will does not admit of being
vested in a person or persons, yet it is true that the institutions
of political society--those by which equal rights are guaranteed to
members of such a society--are an expression of, and are maintained
by, a general will. The sovereign should be regarded, not in
abstraction as the wielder of coercive force, but in connection with
the whole complex of institutions of political society. It is as
their sustainer, and thus as the agent of the general will, that the
sovereign power must be presented to the minds of the people if it
is to command habitual loyal obedience; and obedience will scarcely
be habitual unless it is loyal, not forced. If once the coercive
power, which must always be an incident of sovereignty, becomes the
characteristic thing about it in its relation to the people governed,
this must indicate one of two things; either that the general
interest in the maintenance of equal rights has lost its hold on
the people, or that the sovereign no longer adequately fulfils its
function of maintaining such rights, and thus has lost the support
derived from the general sense of interest in supporting it. It may
be doubted whether the former is ever really the case; but whatever
explanation of the case may be the true one, it is certain that when
the idea of coercive force is that predominantly associated with
the law-imposing and law-enforcing power, then either a disruption
of the state or a change in the sources of sovereignty must sooner
or later take place. In judging, however, whether this is the case,
we must not be misled by words. In England, e.g., from the way in
which many people speak of 'government,' we might suppose that it
was looked on mainly as the wielder of coercive force; but it would
be a mistake on that account to suppose that English people commonly
regard the laws of the country as so much coercion, instead of as an
institution in the maintenance of which they are interested. When
they speak disapprovingly of 'government,' they are not thinking of
the general system of law, but of a central administrative agency,
which they think interferes mischievously with local and customary
administration.
94. It is more true, then, to say that law, as the system of rules
by which rights are maintained, is the expression of a general will
than that the general will is the sovereign. The sovereign, being
a person or persons by whom in the last resort laws are imposed
and enforced, in the long run and on the whole is an agent of the
general will, contributes to realise that will. Particular laws may,
no doubt, be imposed and enforced by the sovereign, which conflict
with the general will; not in the sense that if all the subject
people could be got together to vote upon them, a majority would
vote against them,--that might be or might not be,--but in the sense
that they tend to thwart those powers of action, acquisition, and
self-development on the part of the members of the society, which
there is always a general desire to extend (though the desire may
not be enlightened as to the best means to the end), and which it is
the business of the law to sustain and extend. The extent to which
laws of this kind may be intruded into the general 'corpus juris'
without social disruption it is impossible to specify. Probably
there has never been a civilised state in which they bore more than
a very small proportion to the amount of law which there was the
strongest general interest in maintaining. But, so far as they go,
they always tend to lessen the 'habitual obedience' of the people,
and thus to make the sovereign cease to be sovereign. The hope must
be that this will result in the transfer of sovereignty to other
hands before a social disruption ensues; before the general system
of law has been so far perverted as to lose its hold on the people.
Of the possibility of a change in sovereignty without any detraction
from the law-abiding habits of the people, France has lately given
a conspicuous example. Here, however, it must be remembered that a
temporary foreign conquest made the transition easier.
95. (2) After what has been said, we need not dwell long on the
second question raised [1] concerning Rousseau's theory: Is there
any truth in speaking of a sovereignty 'de jure' founded upon the
'volonté générale'? It is a distinction which can only be maintained
so long as either 'sovereign' is not used in a determinate sense, or
by 'jus' is understood something else than law or right established
by law. If by 'sovereign' we understand something short of a person
or persons holding the supreme law-making and law-enforcing power,
e.g. an English king who is often called sovereign, we might say
that sovereignty was exercised 'de facto' but not 'de jure' when
the power of such a 'sovereign' was in conflict with, or was not
sanctioned by, the law as declared and enforced by the really supreme
power. Thus an English king, so far as he affected to control the
army or raise money without the co-operation of Parliament, might be
said to be sovereign 'de facto' but not 'de jure'; only, however,
on the supposition that the supreme law-making and law-enforcing
power does not belong to him, and thus that he is called 'sovereign'
in other than the strict sense. If he were sovereign in the full
sense 'de facto,' he could not fail to be so 'de jure,' i.e.
legally. In such a state of things, if the antagonism between king
and parliament continued for any length of time, it would have to
be admitted that there was no sovereign in the sense of a supreme
law-making and law-enforcing power; that sovereignty in this sense
was in abeyance, and that anarchy prevailed. Or the same thing might
be explained by saying that sovereignty still resided 'de jure'
with the king and parliament, though not 'de facto' exercised by
them; but if we use such language, we must bear in mind that we are
qualifying 'sovereignty' by an epithet which neutralises its meaning
as an actually supreme power. If, however, the king succeeded in
establishing such a power on a permanent footing, he would have
become sovereign in the full sense, and there would be no ground
for saying, as before, that he was not sovereign 'de jure'; for the
qualifications 'de jure' and 'not de jure,' in that sense in which
they might be applied to a power which is not supreme, are equally
inapplicable to the power of making and enforcing law which is
supreme. The monarch's newly established supremacy may be in conflict
with laws that were previously in force, but he has only to abolish
those laws in order to render it legal. If, then, it is still to
be said to be not 'de jure,' it must be because 'jus' is used for
something else than law or right established by law; viz. either
for 'natural right' (if we admit that there is such a thing), and
'natural right' as not merely = natural power; or for certain claims
which the members of the subject community have come to recognise as
inherent in the community and in themselves as members of it, claims
regarded as the foundation of law, not as founded upon it, and with
which the commands of the sovereign conflict. But even according to
this meaning of 'jus,' a sovereign in the strict Austinian sense,
that is not so 'de jure,' is in the long run an impossibility.
'Habitual obedience' cannot be secured in the face of such claims.
[1] [Above, sec. 80. RLN]
96. But whether or no in any qualified sense of 'sovereign' or 'jus,'
a sovereign that is not so 'de jure' is possible, once understand
by 'sovereign' the determinate person or persons with whom the
ultimate law-imposing and law-enforcing power resides, and by 'jus'
law, it is then obviously a contradiction to speak of a sovereign
'de jure' as distinguished from one 'de facto.' The power of the
ultimate imponent of law cannot be derived from, or limited by, law.
The sovereign may no doubt by a legislative act of its own lay down
rules as to the mode in which its power shall be exercised, but if
it is sovereign in the sense supposed, it must always be open to it
to alter these rules. There can be no illegality in its doing so.
In short, in whatever sense 'jus' is derived from the sovereign, in
that sense no sovereign can hold his power 'de jure.' So Spinoza held
that 'imperium' was 'de jure' indeed, but 'de jure naturali' ('jus
naturale' = natural power), which is the same as 'de jure divino';
only powers exercised in subordination to 'imperium' are 'de jure
civili.' So Hobbes said that there could be no 'unjust law.' A law
was not a law unless enacted by a sovereign, and 'the just' being
that to which the sovereign obliges, the sovereign could not enact
the unjust, though it might enact the inequitable and the pernicious,
the 'inequitable' presumably meaning that which conflicts with a law
of nature, the 'pernicious' that which tends to weaken individuals
or society. Rousseau retains the same notion of the impeccability of
the sovereign, but on different grounds. Every act of the sovereign
is according to him 'de jure,' not because all right is derived from
a supreme coercive power and the sovereign is that power, but because
the sovereign is the general will, which is necessarily a will for
the good of all. The enactment of the sovereign could as little, on
this view, be 'inequitable' or 'pernicious' as it could be 'unjust.'
But this view necessitates a distinction between the sovereign, thus
conceived, and the actually supreme power of making and enforcing
law as it exists anywhere but in what Rousseau considered a perfect
state. Rousseau indeed generally avoids calling this actually supreme
power 'sovereign,' though he cannot, as we have seen, altogether
avoid it; and since, whatever he liked to call it, the existence
of such a power in forms which according to him prevented its
equivalence to the general will was almost everywhere a fact, his
readers would naturally come to think of the actually supreme power
as sovereign 'de facto,' in distinction from something else which was
sovereign 'de jure.' And further, under the influence of Rousseau's
view that the only organ of the general will was an assembly of
the whole people, they would naturally regard such an assembly as
sovereign 'de jure,' and any other power actually supreme as merely
sovereign 'de facto.' This opposition, however, really arises out of
a confusion in the usage of the term 'sovereign'; out of inability
on the one side to hold fast the identification of sovereign with
general will, on the other to keep it simply to the sense of the
supreme law-making and law-enforcing power. If 'sovereign' = 'general
will,' the distinction of 'de facto' and 'de jure' is inapplicable
to it. A certain desire either is or is not the general will. A
certain interest is or is not an interest in the common good. There
is no sense in saying that such desire or interest is general will
'de jure' but not 'de facto,' or _vice versa_. On the other hand, if
'sovereign' = the supreme law-making and law-enforcing power, the
distinction is equally inapplicable to it. If any person or persons
have this power at all, they cannot be said to have it merely 'de
facto' while others have it 'de jure.'
97. It may be urged with much truth that the actual possession of
such power by a determinate person or persons is rather a convenient
hypothesis of writers on jurisprudence than an actual fact; and, as
we have seen, the actual condition of things at certain times in
certain states may conveniently be expressed by saying that there was
a sovereign 'de facto' that was not so 'de jure,' or vice versa; but
only on the supposition that 'sovereign' is not taken necessarily
in the full sense of a supreme law-making and law-enforcing power.
In a state of things that can be so described, however, there is no
'sovereignty' at all in the sense of an actually supreme power of
making and enforcing law resident in a determinate person or persons.
Sovereignty in this sense can only exist 'de facto'; and when it so
exists, it is obvious that no other can in the same sense exist 'de
jure.' It may be denied indeed in particular cases that an actually
supreme power of making and enforcing law is exercised 'de jure,' in
a sense of that phrase already explained (see section 95). Reasons
were given for doubting whether a power could really maintain its
sovereign attributes if conflicting with 'jus,' in the sense thus
explained. But supposing that it could, the fact that it was not
exercised 'de jure' would not entitle us to say that any other person
or persons were sovereign 'de jure,' without altering the meaning of
'sovereign.' If any one has supreme power 'de facto,' that which any
one else has cannot be supreme power. The qualification of a power as
held not 'de facto' but 'de jure' is one which destroys its character
as supreme, i.e. as sovereign in the sense before us.
98. It is only through trying to combine under the term 'sovereign'
the notions of the general will and of supreme power that we are led
to speak of the people as sovereign 'de jure,' if not 'de facto.'
There would be no harm indeed in speaking of the general will as
sovereign, if the natural association of 'sovereign' with supreme
coercive power could be got rid of; but as this cannot be, when once
we have pronounced the general will 'sovereign,' we are pretty sure
to identify the general will with a vote of the majority of citizens.
A majority of citizens can be conceived as exercising a supreme
coercive power, but a general will, in the sense of an unselfish
interest in the common good which in various degrees actuates men in
their dealings with each other, cannot be so conceived. Thus for the
sovereignty, in an impalpable and unnatural sense, of the general
will, we get a sovereignty, in the natural and demonstrable sense, of
the multitude. But as the multitude is not everywhere supreme, the
assertion of its sovereignty has to be put in the form that it is
sovereign 'de jure.' The truth which underlies this proposition is
that an interest in common good is the ground of political society,
in the sense that without it no body of people would recognise any
authority as having a claim on their common obedience. It is so far
as a government represents to them a common good that the subjects
are conscious that they ought to obey it, i.e. that obedience to it
is a means to an end desirable in itself or absolutely. This truth
is latent in Rousseau's doctrine of the sovereignty of the general
will, but he confounds with it the proposition that no government has
a claim on obedience, but that which originates in a vote passed by
the people themselves who are called on to obey (a vote which must
be unanimous in the case of the original compact, and carried by a
majority in subsequent cases).
99. This latter doctrine arises out of the delusion of natural right.
The individual, it is thought, having a right, not derived from
society, to do as he likes, can only forego that right by an act to
which he is a party. Therefore he has a right to disregard a law
unless it is passed by an assembly of which he has been a member,
and by the decision of which he has expressly or tacitly agreed to
be bound. Clearly, however, such a natural right of the individual
would be violated under most popular sovereignties no less than under
one purely monarchical, if he happened to object to the decision of
the majority; for to say, as Rousseau says, that he has virtually
agreed, by the mere fact of residence in a certain territory, to be
bound by the votes of the majority of those occupying that territory,
is a mere trick to save appearances. But in truth there is no such
natural right to do as one likes irrespectively of society. It is on
the relation to a society, to other men recognising a common good,
that the individual's rights depend, as much as the gravity of a body
depends on relations to other bodies. A right is a power claimed and
recognised as contributory to a common good. A right against society,
in distinction from a right to be treated as a member of society, is
a contradiction in terms. No one, therefore, has a right to resist a
law or ordinance of government, on the ground that it requires him
to do what he does not like, and that he has not agreed to submit
to the authority from which it proceeds; and if no one person has
such a right, no number of persons have it. If the common interest
requires it, no right can be alleged against it. Neither can its
enactment by popular vote enhance, nor the absence of such vote
diminish, its right to be obeyed. Rousseau himself well says that
the proper question for each citizen to ask himself in regard to any
proposal before the assembly is not, Do I like or approve it? but,
Is it according to the general will? which is only another way of
asking, Is it according to the general interest? It is only as the
organ of this general interest that the popular vote can endow any
law with the right to be obeyed; and Rousseau himself, if he could
have freed himself from the presuppositions of natural right, might
have admitted that, as the popular vote is by no means necessarily
an organ of the general interest, so the decree of a monarch or of
an aristocratic assembly, under certain conditions, might be such an
organ.
100. But it may be asked, Must not the individual judge for himself
whether a law is for the common good? and if he decides that it is
not, is he not entitled to resist it? Otherwise, not only will laws
passed in the interest of individuals or classes, and against the
public good, have a claim to our absolute and permanent submission,
but a government systematically carried on for the benefit of a few
against the many can never be rightfully resisted. To the first
part of this question we must of course answer 'yes,' without
qualification. The degree to which the individual judges for himself
of the relation between the common good and the laws which cross
the path of his ordinary life, is the measure of his intelligent,
as distinguished from a merely instinctive, recognition of rights
in others and in the state; and on this recognition again depends
his practical understanding of the difference between mere powers
and rights as recognised by himself. Supposing then the individual
to have decided that some command of a 'political superior' is not
for the common good, how ought he to act in regard to it? In a
country like ours, with a popular government and settled methods of
enacting and repealing laws, the answer of common sense is simple
and sufficient. He should do all he can by legal methods to get the
command cancelled, but till it is cancelled he should conform to it.
The common good must suffer more from resistance to a law or to the
ordinance of a legal authority, than from the individual's conformity
to a particular law or ordinance that is bad, until its repeal can be
obtained. It is thus the social duty of the individual to conform,
and he can have no right, as we have seen, that is against his social
duty; no right to anything or to do anything that is not involved in
the ability to do his duty.
101. But difficulties arise when either (I) it is a case of disputed
sovereignty, and in consequence the legal authority of the supposed
command is doubtful; or (2) when the government is so conducted
that there are no legal means of obtaining the repeal of a law; or
(3) when the whole system of a law and government is so perverted
by private interests hostile to the public that there has ceased to
be any common interest in maintaining it; or (4),--a more frequent
case,--when the authority from which the objectionable command
proceeds is so easily separable from that on which the maintenance of
social order and the fabric of settled rights depends, that it can be
resisted without serious detriment to this order and fabric. In such
cases, may there not be a right of resistance based on a 'higher law'
than the command of the ostensible sovereign?
102. (1) As to cases where the legal authority of the supposed
command is doubtful. In modern states the definition of
sovereignty,--the determination of the person or persons with whom
the supreme power of making and enforcing law legally resides,--has
only been arrived at by a slow process. The European monarchies have
mostly arisen out of the gradual conversion of feudal superiority
into sovereignty in the strict sense. Great states, such as Germany
and Italy, have been formed by the combination of independent or
semi-dependent states. In England the unity of the state goes back
much further than anywhere else, but in England it was but gradually
that the residence of sovereignty jointly in king, lords, and commons
came to be practically established, and it is still founded merely on
a customary law. In the United States, with a written constitution,
it required all Austin's subtlety to detect where sovereignty lay,
and he places it where probably no ordinary citizen of the United
States had ever thought of it as residing, viz. 'in the states'
governments as forming one aggregate body: meaning by a state's
government, not its ordinary legislature, but the body of citizens
which appoints its ordinary legislature, and which, the union apart,
is properly sovereign therein.' He bases this view on the provision
in the constitution, according to which amendments to it are only
valid 'when ratified by the legislature in three-fourths of the
several states, or by convention in three-fourths thereof.' (I, p.
268.) But no ordinary citizen of the United States probably ever
thought of sovereignty except as residing either in the government
of his state or in the federal government consisting of congress and
president, or sometimes in one way, sometimes in the other. In other
countries, e.g. France, where since Louis XIV the quarter in which
sovereignty resides has at any given time been easily assignable,
there have since the revolution been such frequent changes in the
ostensible sovereign that there might almost at any time have been a
case for doubting whether the ostensible sovereign had such command
over the habitual obedience of the people as to be a sovereign in
that sense in which there is a social duty to obey the sovereign, as
the representative of the common interest in social order; whether
some prior sovereignty was not really still in force. For these
various reasons there have been occasions in the history of all
modern states at which men, or bodies of men, without the conscious
assertion of any right not founded upon law, might naturally deem
themselves entitled to resist an authority which on its part claimed
a right--a legally established power--to enforce obedience, and
turned out actually to possess the power of doing so.
103. In such cases the truest retrospective account to be given
of the matter will often be, that at the time there was nothing
amounting to a right on either side. A right is a power of which the
exercise by the individual or by some body of men is recognised by
a society, either as itself directly essential to a common good, or
as conferred by an authority of which the maintenance is recognised
as so essential. But in cases of the kind described the authorities,
appealed to on each side as justifying respectively compulsion and
resistance, often do not command a sufficiently general recognition
of their being necessary to the common good to enable them to confer
rights of compulsion or resistance. One or other of them may be
coming to do so, or ceasing to do so, but rights, though on the one
hand they are eternal or at least coeval with human society, on the
other hand take time to form themselves in this or that particular
subject and to transfer themselves from one subject to another; (just
as one may hold reason to be eternal, and yet hold that it takes
time for this or that being to become rational.) Hence in periods
of conflict between local or customary and imperial or written law,
between the constituent powers of a sovereignty, such as king and
parliament in England, of which the relation to each other has not
become accurately defined, between a falling and a rising sovereign
in a period of revolution, between federal and state authorities in
a composite state, the facts are best represented by saying that
for a time there may be no right on either side in the conflict,
and that it is impossible to determine precisely the stage at which
there comes to be such a right on the one side as implies a definite
resistance to right on the other. This of course is not to be taken
to mean that in such periods rights in general are at an end. It is
merely that right is in suspense on the particular point at issue
between the conflicting powers. As we have seen, the general fabric
of rights in any society does not depend on the existence of a
definite and ascertained sovereignty, in the restricted sense of the
words; on the determination of a person or persons in whom supreme
power resides; but on the control of the conduct of men according to
certain regular principles by a society recognising common interests;
and though such control may be more or less weakened during periods
of conflict of the kind supposed, it never ceases.
104. It does not follow, however, because there may often not be
strictly a right on either side in such periods of conflict, that
there is not a good and an evil, a better and a worse, on one side
or the other. Of this we can only judge by reference to the end,
whatever it be, in which we conceive the good of man to consist.
There may be clear ground for saying, in regard to any conflict,
that one side rather than the other _ought_ to have been taken, not
because those on one side were, those on the other were not, entitled
to say that they had a right to act as they did, but because the
common good of a nation or mankind was clearly promoted by one line
of action, not by the other. E.g. in the American war of secession,
though it would be difficult to say that a man had not as much a
right to fight for his seceding state as for the Union, yet as the
special interest of the seceding states was that of maintaining
slavery, there was reason for holding that the side of the Union, not
that of the seceding states, was the one which ought to be taken. On
the other hand, it does not follow that in a struggle for sovereignty
the good of man is more served by one of the competing powers than
by the other. Good may come out of the conflict without one power
contributing more to it than the other. There may thus be as little
ground retrospectively for saying that one side or the other ought
to have been taken, as that men had a right to take one and not
the other. At the same time, as regards the individual, there is
no reason for doubting that the better the motive which determines
him to take this side or that, the more he is actuated in doing so
by some unselfish desire for human good, the more free he is from
egotism, and that conceit or opinionatedness which is a form of
egotism, the more good he will do whichever side he adopts.
105. It is in such cases as we have been considering that the
distinction between sovereign 'de facto' and sovereign 'de jure'
arises. It has a natural meaning in the mouths of those who, in
resisting some coercive power that claims their obedience, can point
to another determinate authority to which they not only consider
obedience due, but to which such obedience in some considerable
measure is actually rendered; a meaning which it has not when all
that can be opposed to sovereign 'de facto' is either a 'general
will,' or the mere name of a fallen dynasty exercising no control
over men in their dealings with each other. But where this opposition
can be used with a natural meaning, it is a truer account of the
matter (as we have seen) to say that sovereignty is in abeyance. The
existence of competing powers, each affecting to control men in the
same region of outward action, and each having partisans who regard
it alone as entitled to exercise such control, implies that there is
not that unity of supreme control over the outward actions of men
which constitutes sovereignty and which is necessary to the complete
organisation of a state. The state has either not reached complete
organisation, or is for the time disorganised, the disorganisation
being more or less serious according to the degree to which the
everyday rights of men (their ordinary freedom of action and
acquisition) are interfered with by this want of unity in the supreme
control.
106. In such a state of things, the citizen has no rule of 'right'
(in the strict sense of the word) to guide him. He is pretty sure
to think that one or other of the competing powers has a right to
his obedience because, being himself interested (not necessarily
selfishly interested) in its support, he does not take account of its
lacking that general recognition as a power necessary to the common
good which is requisite in order to give it a right. But we looking
back may see that there was no such right. Was there then nothing to
direct him either way? Simply, I should answer, the general rule of
looking to the moral good of mankind, to which a necessary means is
the organisation of the state, which again requires unity of supreme
control, in the common interest, over the outward actions of men.
The citizen ought to have resisted or obeyed either of the competing
authorities, according as by doing so he contributed most to the
organisation of the state in the sense explained. It must be admitted
that without more knowledge and foresight than the individual can be
expected to possess, this rule, if he had recognised it, could have
afforded him no sure guidance; but this is only to say that there are
times of political difficulty in which the line of conduct adopted
may have the most important effect, but in which it is very hard to
know what is the proper line to take. On the other side must be set
the consideration that the man who brings with him the character most
free from egotism to the decision even of those questions of conduct,
as to which established rules of right and wrong are of no avail, is
most sure on the whole to take the line which yields the best results.
107. We come next to the question of the possible duty of resistance
in cases where no law, acknowledged or half-acknowledged,
written or customary, can be appealed to against a command
(general or particular) contrary to the public good; where no
counter-sovereignty, in the natural sense of the words, can be
alleged against that of the imponent of the law; and where at the
same time, from the people having no share, direct or indirect, in
the government, there is no means of obtaining a repeal of the law
by legal means. I say the 'duty' of resistance because, from the
point of view here adopted, there can be no 'right,' unless on the
ground that it is for the common good, and if so, there is a duty. In
writings of the seventeenth and eighteenth centuries, starting with
the assumption of natural rights, the question was never put on its
proper footing. It was not asked, When, for the sake of the common
good, the citizen ought to resist the sovereign? but, What sort of
injury to person or property gave him a natural right to resist? Now
there is sense in inquiring upon what sort and amount of provocation
from government individuals inevitably will resist; how (in Spinoza's
language) that 'indignatio' is excited which leads them 'in unum
conspirare'; but there is none in asking what gives them a right to
resist, unless we suppose a wrong done to society in their persons;
and then it becomes a question not of right merely, but of duty,
whether the wrong done is such as to demand resistance. Now when the
question is thus put, no one presumably would deny that under certain
conditions there might be a duty of resistance to sovereign power.
108. It is important, however, that instead of discussing the right
of a majority to resist, we should discuss the duty of resistance as
equally possible for a minority and a majority. There can be no right
of a majority of citizens, as such, to resist a sovereign. If by
law, written or customary, the majority of citizens possess or share
in the sovereign power, then any conflict that may arise between it
and any power cannot be a conflict between it and the sovereign. The
majority may have a right to resist such a power, but it will not be
a right to resist a _sovereign_. If, on the other hand, the majority
of citizens have no share by law or custom in the supreme law-making
and law-enforcing power, they never can have a right, simply as a
majority, to resist that power.
In such a case, there may arise a social duty to resist, and the
exercise of men's powers in fulfilment of that duty may be sustained
by such a general recognition of its being for the public good, as to
become a right; but the resistance may be a duty before a majority of
the citizens approve it, and does not necessarily become a duty when
a majority of them do approve it; while that general recognition of
its exercise as being for the common good, through which the power
of resistance becomes a right, must be something more habitual and
sustained and penetrating than any vote of a majority can convey.
Incidentally, however, the consideration of the attitude of the mass
of the people in regard to a contemplated resistance to established
government must always be most important in determining the question
whether the resistance should be made. It should be made, indeed, if
at all, not because the majority approve it, but because it is for
the public good; but account must be taken of the state of mind of
the majority in considering whether it is for the public good or no.
The presumption must generally be that resistance to a government is
not for the public good when made on grounds which the mass of the
people cannot appreciate; and it must be on the presence of a strong
and intelligent popular sentiment in favour of resistance that the
chance of avoiding anarchy, of replacing the existing government
by another effectual for its purpose, must chiefly depend. On the
other hand, it is under the worst governments that the public spirit
is most crushed; and thus in extreme cases there may be a duty of
resistance in the public interest, though there is no hope of the
resistance finding efficient popular support. (An instance is the
Mazzinian outbreaks in Italy.) Its repeated renewal and repeated
failure may afford the only prospect of ultimately arousing the
public spirit which is necessary for the maintenance of a government
in the public interest. And just as there may thus be a duty of
resistance on the part of a hopeless minority, so on the other side
resistance even to a monarchic or oligarchic government is not
justified by the fact that a majority, perhaps in some temporary
fit of irritation or impatience, is ready to support it, if, as may
very well be, the objects for which government subsists--the general
freedom of action and acquisition and self-development--are likely to
suffer from an overthrow of the government in the popular interest.
109. No precise rule, therefore, can be laid down as to the
conditions under which resistance to a despotic government becomes
a duty. But the general questions which the good citizen should
ask himself in contemplating such resistance will be, __(a)__ What
prospect is there of resistance to the sovereign power leading to
a modification of its character or an improvement in its exercise
without its subversion? _(b)_ If it is overthrown, is the temper of
the people such, are the influences on which the general maintenance
of social order and the fabric of recognised rights depend so far
separable from it, that its overthrow will not mean anarchy? _(c)_ If
its overthrow does lead to anarchy, is the whole system of law and
government so perverted by private interests hostile to the public,
that there has ceased to be any common interest in maintaining it?
110. Such questions are so little likely to be impartially
considered at a time when resistance to a despotic government is
in contemplation, and, however impartially considered, are so
intrinsically difficult to answer, that it may seem absurd to dwell
on them. No doubt revolutionists do and must to a great extent 'go
it blind.' Such beneficent revolutions as there have been could not
have been if they did not. But in most of those questions of right
and wrong in conduct, which have to be settled by consideration of
the probable effects of the conduct, the estimate of effects which
regulates our approval or disapproval upon a retrospective survey,
and according to which we say that an act should or should not have
been done, is not one which we could expect the agent himself to have
made. The effort to make it would have paralysed his power of action.
111. In the simple cases of moral duty, where there is no real doubt
as to the effects of this or that action, and danger arises from
interested self-sophistication, we can best decide for ourselves
whether we ought to act in this way or that by asking whether it
is what is good in us--a disinterested or unselfish motive--that
moves us to act in this way or that; and in judging of the actions
of others, where the issues and circumstances are simple, the moral
question, the question of 'ought' or 'ought not,' is often best put
in the form, How far was the action such as could represent a good
character? That indeed is the form in which the question should
always be put, when the nature of the case admits it; since, as
argued elsewhere [_Prol. to Ethics_, Bk II, Chaps I and II], it is
only in its relation to character that action is in the full sense
good or bad. But where the probable effects of a certain line of
action are at the time of taking it very obscure, we cannot be sure
that relatively the best character will lead a man to take the line
which turns out best in the result, or that because a line of action
has turned out well in result, the character of the man who adopted
it was good. This being so, in judging of the act retrospectively we
have to estimate it by the result simply, in abstraction from the
character of the agent. Thus in looking back upon a revolutionary
outbreak we can only judge whether it was vindicated by the result.
If in the light of the result it appears that conditions were not
present under which it would have furthered rather than interfered
with the true objects of government, we judge that it should not
have been made; if otherwise, we approve it,--judge that the persons
concerned in it were doing their duty in acting as they did. But
whether they were really doing their duty in the full sense of
the term in acting as they did in a case when the outbreak was
successful, or not doing it in a case where it failed, is what we
simply cannot tell; for this depends on the state of character which
their action represented, and that is beyond our ken.
112. Such is the necessary imperfection under which all historical
judgments labour, though historians are not apt to recognise it and
would be thought much more dull if they did. They would have fewer
readers if they confined themselves to the analysis of situations,
which may be correctly made, and omitted judgments on the morality
of individuals for which, in the proper sense, the data can never
be forthcoming. We scarcely have them for ourselves (except that we
know that we are none of us what we should be), still less for our
intimate acquaintance; not at all for men whom we only know through
history, past or present, in regard to them, we can only fall back on
the generalisation, that the best man--the man most disinterestedly
devoted to the perfecting of humanity, in some form or other, in
his own person or that of others--is more likely to act in a way
that is good as measured by its results, those results again being
estimated with reference to an ideal of character, and that this is
so even under circumstances of political complication. Appearances
to the contrary, appearances of harm done from good motives, may be
met by the considerations, (1) that there is often much egotism in
what calls itself conscientiousness, and that the 'conscientious'
motives which lead to mischievous acts may not be in the highest
sense disinterested; (2) that to what we call the consequences of an
action many influences contribute besides the action which we call
the cause, and if evil seems to clog the consequences of action pure
in motive, this may be due to other influences connected with motives
less worthy, while the consequences which in the rough we call bad
might have been worse but for the intervention of the purely-motived
action; (3) that the beneficent results are often put to the credit
of the actions of selfish men when they should rather be credited to
influences more remote and complex, without which those actions would
have been impossible or had no good effect, and which have arisen out
of unselfish activities. We see the evil in a course of events and
lay the blame on someone who should have acted differently, and whom
perhaps we take as an instance of how good men cause mischief; but
we do not see the greater evil which would otherwise have ensued. In
regard to the questions stated above as those which the good citizen
should set himself in contemplation of a possible rebellion, though
they are questions to which it is impossible for a citizen in the
heat of a revolutionary crisis to give a sufficient answer, and which
in fact can only be answered after the event, yet they represent
objects which the good citizen will set before himself at such times;
and in proportion to the amount of good citizenship, as measured by
interest in those objects, interest in making the best of existing
institutions, in maintaining social order and the general fabric of
rights, interest which leads to a _bona fide_ estimate of the value
of the existing government in its relation to public good, will be
the good result of the political movement.