public authorities regularly exercising legislative functions, most laws
do not belong in their form or their meaning to the category of
commands. In order to make them seem commands a forced and unnatural
sense must be put upon them, by representing the State as directly
ordering everything to which it is prepared to give effect. Statute law
takes the form of a command more often than does any other kind of law.
Yet even in English statute law administrative statutes, which now
constitute a large part of that law, are usually couched in the form,
not of an order to a public body or an official to do such and such a
thing, but of an authorization which makes action legal which might
otherwise have been illegal. This distinction, though somewhat
technical, nevertheless indicates the unsuitability of the definition.
As for that part of the law of a country which determines the private
rights of the citizens towards one another, as for instance the
conditions attaching to commercial and other contracts, their
interpretation, the liability they create, or, again, the rights of
succession to property, and the modes of dealing with heirship or
bequests—this largest and most important part of the law does not
consist of commands. The rules of which it consists are declarations of
the doctrines which the Courts have applied and will apply; or they are,
if you like, assurances given by the State that it will, with physical
force at its disposal, take a certain course in certain events, and thus
they become instructions helpful to the citizens, showing them how they
may get the law, and physical force, on their side in civil disputes.
But they are not, in any natural sense of the word, Commands. This is
obvious enough in English law, where most of such rules are to be
gathered from the reports of decided cases: but the same thing is
substantially true of those countries which have embodied in statutory
form their rules upon these matters. The point is not merely one of form
or phrase, though it may at first sight seem to be so. It goes deeper;
it carries one back to the origin of these laws, and bears upon their
inherent nature. In fact the only branch of law which is properly
covered by the definition I am examining is Penal or Criminal (with
certain parts of administrative) law, for this branch does consist of
express orders or prohibitions accompanied by threats of punishment. It
may be conjectured that the Benthamites took their notion of law in
general from this particular department of it, or perhaps from the Ten
Commandments in the Book of Exodus, which, though no doubt good examples
of the categorical imperative, are anything but typical of law in
general.
If the Benthamites had been content to distinguish rules which the State
enforces from courses of conduct which opinion supports, the
distinction, though an older and more obvious one than they supposed,
would have its worth. The definition of a law as that which the State is
prepared to enforce fits a modern State, though not universally
applicable to early communities. But the Benthamite definition goes
further, and may be misleading even as regards modern laws generally.
The third objection to this definition is that it is not primarily or
chiefly Fear which is the source of Obedience. It is not Physical Force
that has created the State whence (according to this doctrine) laws
issue and by which they are applied. It is not through Force that kings
reign and princes decree justice. According to the Hebrew Scriptures it
is by God that they reign. According to Homer it is Zeus who has given
to the king the sceptre and the dooms, that therewith he may rule. Both
expressions convey the same truth, that it is by the natural or
providential order of things, and in virtue of the constitution of man
as a social being, that men are grouped into communities under leaders
who judge among them. The tendency to aggregation, to imitation, to
compliance and submission, is the basis on which the State is built. It
is of course not only true but obvious that the State must have physical
strength at its disposal in order to make the law obeyed. The capacity
for applying compulsion holds the State together. But why is it that the
State is able to apply force? Because, in the ordered and normal State,
the same influences which have drawn men together keep them together,
and make them willingly yield to the State the physical strength, and
the money which purchases physical strength, needful for its purposes.
Where a ruler rules by pure force (apart from the consent of the
community), he is what the Greeks called a Tyrant, or the Italians in
the fourteenth century a Signore, a Usurper reigning in defiance of law
by means of armed men, an Adventurer who has risen by a revolution, is
supported by the soldiery, and will fall when they turn against him.
Such Tyrants are represented in our own day by the Presidents in some of
the Spanish Republics of Central and South America. Pure Force is really
the most unstable foundation on which either the State or Law can rest.
Thus the same conclusion to which history leads is also enjoined on us
by a consideration of the psychological or sociological grounds which
induce obedience, and the Benthamic definition is perceived to be
unsound. These curt and often sweeping definitions usually are unsound.
They are not simple, although they are summary. They are arbitrary and
artificial, concealing under few words many fallacies. Human nature and
human society are too complex to be thus dealt with.
X
THE NATURE OF SOVEREIGNTY
I. PRELIMINARY.
As the borderland between two kingdoms used in unsettled states of
society to be the region where disorder and confusion most prevailed,
and in which turbulent men found a refuge from justice, so fallacies and
confusions of thought and language have most frequently survived and
longest escaped detection in those territories where the limits of
conterminous sciences or branches of learning have not been exactly
drawn. The frontier districts, if one may call them so, of Ethics, of
Law, and of Political Science have been thus infested by a number of
vague or ambiguous terms which have provoked many barren discussions and
caused much needless trouble to students. The words which serve as
technical expressions in adjacent departments of knowledge are sometimes
employed in slightly different senses in those different departments;
and neither in Ethics nor in Politics has a well-defined terminology
become accepted. It is only of late years, when philosophy in becoming
less creative has become more critical, that there has been established
on the confines of these three sciences a comparatively vigilant police,
which is competent, at least in the realm of law, to arrest suspicious
phrases and propositions, and subject them to a rigorous examination.
No offender of this kind has given more trouble than the so-called
‘Doctrine of Sovereignty.’ The controversies which it has provoked have
been so numerous and so tedious that a reader—even the most patient
reader—may feel alarmed at being invited to enter once again that dusty
desert of abstractions through which successive generations of political
philosophers have thought it necessary to lead their disciples. Let me
therefore hasten to say that my aim is to avoid that desert altogether,
and approach the question from the concrete side. Instead of attempting
to set forth and analyse the doctrines of the great publicists of the
sixteenth and seventeenth centuries—Bodin, Althaus, Grotius, Hobbes, and
the rest—or the dogmas delivered by Bentham and Austin, who represent
the school that has had most influence during the last seventy years in
England, I will assume the views of these and similar writers to be
sufficiently known, and will reserve criticisms upon them till we have
seen whether there may not be found a conception and definition of the
thing more plain, simple, and conformable to the facts, than could well
have been reached by those who, living in the midst of acute political
controversies, were really occupied in solving problems which belonged
to their own time, and which now, under changed conditions, seem capable
of receiving an easier solution. If we succeed in finding such a
conception, we may return to inquire why the modern successors of
Hobbes, who had not the same need for a theory as he had, worried
themselves over what was really a question rather of words than of
substance.
It is well to begin by distinguishing the senses in which the word
Sovereignty is used. In the ordinary popular sense it means Supremacy,
the right to demand obedience. Although the idea of actual power is not
absent, the prominent idea is that of some sort of title to exercise
control. An ordinary layman would call that person (or body of persons)
Sovereign in a State who is obeyed because he is acknowledged to stand
at the top, whose will must be expected to prevail, who can get his own
way, and make others go his, because such is the practice of the
country. Etymologically the word of course means merely superiority[5],
and familiar usage applies it in monarchies to the monarch, because he
stands first in the State, be his real power great or small.
-----
Footnote 5:
The heads of monasteries seem to have been sometimes familiarly
described as Sovereigns in the Middle Ages. The name Sovereign was
down till very recent times used to describe the head of a
municipality in several Irish boroughs. Probably other similar
instances might be collected.
-----
II. LEGAL SOVEREIGNTY (_De Iure_).
For the purposes of the lawyer a more definite conception is required.
The sovereign authority is to him the person (or body) to whose
directions the law attributes legal force, the person in whom resides as
of right the ultimate power either of laying down general rules or of
issuing isolated rules or commands, whose authority is that of the law
itself. It is in this sense, and in this sense only, that the jurist is
concerned with the question who is sovereign in a given community. In
every normal modern State there exist many rules purporting to bind the
citizen, and many public officers who are entitled, each in his proper
sphere, to do certain acts or issue certain directions. Who has the
right to make the rules? Who has the right to appoint and assign
functions to the officers? The person or body to whom in the last resort
the law attributes this right is the legally supreme power, or
Sovereign, in the State. There may be intermediate authorities
exercising delegated powers. Legal sovereignty evidently cannot reside
in them; the search for it must be continued till the highest and
ultimate source of law has been reached.
A householder in a municipality is asked to pay a paving rate. He
inquires why he should pay it, and is referred to the resolution of the
Town Council imposing it. He then asks what authority the Council has to
levy the rate, and is referred to a section of the Act of Parliament
whence the Council derives its powers. If he pushes curiosity further,
and inquires what right Parliament has to confer these powers, the rate
collector can only answer that everybody knows that in England
Parliament makes the law, and that by the law no other authority can
override or in any wise interfere with any expression of the will of
Parliament. Parliament is supreme above all other authorities, or in
other words, Parliament is Sovereign.
The process of discovering the Sovereign is in all normal modern States
essentially the same. In an autocracy like that of Russia it is
generally very short and simple, since all laws (except customs having
legal force) and executive orders emanate directly or indirectly from
the Czar, and by the law the Czar is the sole legislative authority.
Both these cases are simple and easy, because we speedily reach one
Person, as in Russia, or one Body of Persons, as in Britain, to whom the
law attributes Sovereignty. But there are cases which present more
difficulty, though the principles to be applied are the same.
In a country governed by a Rigid Constitution which limits the power of
the legislature to certain subjects, or forbids it to transgress certain
fundamental doctrines, the Sovereignty of the legislature is to that
extent restricted. Within the sphere left open to it, it is supreme,
while matters lying outside its sphere can be dealt with only by the
authority (whether a Person or a Body) which made and can amend the
Constitution. So far as regards those matters, therefore, ultimate
Sovereignty remains with the authority aforesaid, and we may therefore
say that in such a country legal Sovereignty is divided between two
authorities, one (the Legislature) in constant, the other only in
occasional action.
Another class of cases arises in a Federal State, where the powers of
government are divided between the Central and the Local Legislatures,
each having a sphere of its own determined by the constitution of the
federation. In such a State the power of making laws belongs for some
purposes to the Central, for some to the Local Legislatures. Thus in the
United States, while Congress is everywhere the supreme legislative
power for some subjects, the tariff, for instance, or copyright, or
inter-state commerce, the legislature of each State is within that State
supreme for other subjects, the law of marriage, for instance, or of
sale, or of police administration. Each legislature therefore (Congress
and the State Legislature) has only a part of the sum total of supreme
legislative power; and each is moreover further limited by the fact that
the Constitution of the United States restricts the general powers of
Congress by forbidding it to do certain things, while the powers of each
State Legislature are restricted not only by the Constitution of the
particular State but by the Constitution of the United States also.
These complications, however, do not affect the general principle. In
every country the legal Sovereign is to be found in the authority, be it
a Person or a Body, whose expressed will binds others, and whose will is
not liable to be overruled by the expressed will of any one placed above
him or it. The law may, in giving this supremacy, limit it to certain
departments, and may divide the whole field of legislative or executive
command between two or more authorities. The Sovereignty of each of
these authorities will then be, to the lawyer’s mind, a partial
Sovereignty. But it will none the less be a true Sovereignty, sufficient
for the purposes of the lawyer. He may sometimes find it troublesome to
determine in any particular instance the range of action allotted to
each of the several Sovereign authorities. But so also is it sometimes
troublesome to decide how far a confessedly inferior authority has kept
within the limits of the power conferred upon it by the supreme
authority. The question is in both sets of cases a question of
interpreting the law, which defines in the one case the sphere of power,
in the other case the extent of delegation actually made; and this
difficulty nowise affects the truth that legal Sovereignty is capable of
being divided between co-ordinate authorities, or of being from time to
time interrupted, or rather overridden, by the action of a power not
regularly at work. It will be understood that I am now dealing with
Legal Sovereignty only, and not at this stage touching the question of
whether, from the point of view of philosophic theory, Sovereignty is
capable of division.
Finally, let it be noted that where Sovereignty is divided between two
or more authorities, one of those (or possibly even more than one) may
have executive functions only. Where there is but one Sovereign Person
or Body, that Person or Body will evidently have both legislative and
executive powers, _i.e._ will be entitled to issue special commands as
well as to prescribe general rules. But a division of Sovereignty may
assign legislative functions to one authority, executive to another. In
the United States, for instance, the President is, by the Constitution,
Sovereign for certain executive purposes (_e.g._ the command of the
army), and the legislature cannot deprive him of that Sovereignty. If
Congress were to pass an Act taking the command of the army from him,
that Act would be void. So in England four centuries ago, although
Parliament was already beginning to be recognized as sovereign for
legislative purposes, the king had, in some departments, an executive
sovereignty which the two Houses of Parliament did not dispute; and he
laid claim in the time of the first two Stuarts to a sort of concurrent
legislative sovereignty, which it required first a civil war and then a
revolution finally to negative and extinguish.
So also it has been argued that Legal Sovereignty may be temporary, yet
complete while it lasts, as was that of a Roman dictator. The phenomenon
is so rare that we need not spend time on discussing it; but there seems
to be in principle nothing to prevent absolute legal control from being
duly vested in a person or body of persons for a term which he, or they,
cannot extend.
The kind of Sovereignty we have been considering is created by and
concerned with law, and law only. It has nothing to do with the actual
forces that exist in a State, nor with the question to whom obedience is
in fact rendered by the citizens in the last resort. It represents
merely the theory of the law, which may or may not coincide with the
actual facts of the case, just as the validity of the demonstration of
the fifth proposition in the first book of Euclid has nothing to do with
the accuracy with which the lines of any actual figure of that
proposition are drawn. The triangle in the figure which appears in a
particular copy of the book may not have equal sides, nor the angles at
the base be equal; this does not affect the soundness of the proof,
which assumes the correctness of the figure. So law assumes, and must
assume all through, that the machinery required for its enforcement is
working _in vacuo_, steadily, equably, and in a manner capable of
overcoming resistance. The actual receiving of obedience is therefore
not (as some have argued) the characteristic mark of a Sovereign
authority, but is a postulate of the law with regard to each and every
of the authorities it recognizes. Penal laws no doubt contemplate
transgression, but they assume the power of overcoming it. With the fact
that obedience is in any given community rendered imperfectly or not
rendered at all, Law as such has nothing to do. In other words, the
question of where Legal Supremacy resides is a pure question of Right as
defined by law. The Sovereign who exists as of right (_de iure_) has not
necessarily anything to do with the Sovereign who prevails in fact (_de
facto_), though, as we shall see presently, the two conceptions, however
distinct scientifically, exercise a significant influence each on the
other.
Further: the question, Who is Legal Sovereign? stands quite apart from
the questions, Why is he Sovereign? and, Who made him Sovereign? The
historical facts which have vested power in any given Sovereign, as well
as the moral grounds on which he is entitled to obedience, lie outside
the questions with which Law is concerned, and belong to history, or to
political philosophy, or to ethics; and nothing but confusion is caused
by intruding them into the purely legal questions of the determination
of the Sovereign and the definition of his powers. Even the manner in
which, or the determination of the persons by whom, the Legal Sovereign
is chosen is a matter distinct from the nature and scope of his
authority. He is not the less a Sovereign in the contemplation of law
because he reigns not by his own right but by the choice of others, as
an elective monarch (like the Romano-Germanic emperor) did, or as an
elective assembly does to-day. The appointing body, even if it can in a
stated way and at a stated time recall its appointment, is not sovereign
over him while his powers last. The fact that the House of Commons, a
part of the Legal Sovereign of England, is chosen by the people, and
that many members of the House of Lords, another part of the Legal
Sovereign, have been appointed by the Crown, does not affect the
Sovereignty of Parliament, because neither the people nor the Crown have
the right of issuing directions, legally binding, to the persons they
have selected.
We have already seen that Legal Sovereignty may be limited or divided.
But it is further to be noted that the totality of possible legal
sovereignty may, in a given State, not be vested either in one sovereign
or in all the sovereign bodies and persons taken together. In other
words, there may be some things which by the constitution of the State
no authority is competent to do, because those things have been placed
altogether out of the reach of legislation. We have already remarked
that all the American constitutions, for instance, both State and
Federal, forbid the legislature to interfere with the so-called
‘primordial rights’ of the citizen. There is thus in the United States
no authority invested with legal power, in time of peace, to prohibit
public meetings not threatening public order, or to suppress a
newspaper. It is true that the people of each State (or of the Union)
retain the power to alter their Constitution, but until or unless they
do alter it the acting legal Sovereign remains debarred from an
important part of the power of Sovereignty. And we may imagine a case in
which a Constitution has been enacted with no provision for any legal
method of amending it[6]. In fact, a somewhat similar condition of
things exists in all Musulman countries. In Turkey, the Sultan, though
Sovereign, is subject to the Sheriat or Sacred Law, which he cannot
alter; and which no power exists capable of altering. A good deal may be
done in the way of interpretation; and the desired Fetwa or solemnly
rendered opinion of the Chief Mufti or Sheik-ul-Islam can generally be
obtained by adequate extra-legal pressure on the Sultan’s part. But no
Sultan would venture to extort, and probably no Mufti to render, a fetwa
in the teeth of some sentence of the Koran itself, which, with the
Traditions, is the ultimate source of the Sacred Law, binding all
Muslims always and everywhere.
-----
Footnote 6:
This seems to be the case in Spain. Some of the republics of antiquity
professed to have unchangeable laws, but few, if any, of these fully
answered to the conception of a Rigid Constitution as we understand
it. See Essay III, vol. i. p. 145.
-----
III. PRACTICAL SOVEREIGNTY (_De Facto_).
We may now turn back to the more popular meaning in which the term
Sovereignty is used by others than lawyers[7]. Even to the ordinary
layman it generally seems to convey some sort of notion of legal right,
yet it may be, and sometimes has been, used to denote simply the
strongest force in the State, whether that force has or has not any
recognized legal supremacy. This strongest force may be a king, or an
assembly, or an oligarchic group controlling a king or an assembly, or
an army, or the chief or chiefs of an army. It may be and ought to be
the legal sovereign, or it may be quite distinct from the legal
sovereign and possess no admitted status in the Constitution. The
expression is perhaps most frequent in the phrase ‘Sovereign Power,’
which carries with it the idea of its being, whether legal or not, at
any rate irresistible. We may define this dominant force, whom we may
call the Practical Sovereign, as the person (or body of persons) who can
make his (or their) will prevail whether with the law or against the
law. He (or they) is the _de facto_ ruler, the person to whom obedience
is actually paid.
-----
Footnote 7:
I pass by the sense in which it is applied to the person of a monarch,
whether limited or absolute, as the king is in any country called the
Sovereign, because that sense is not liable to be confused with the
purely legal sense. A Nominal Sovereign need not be, and often is not,
either a Legal or a Practical Sovereign.
-----
It is better not to say ‘the person who compels obedience’ or ‘the
person who commands physical force,’ because it may not be under
positive compulsion, but in virtue of other sources of power than the
command of physical force, that obedience is in fact rendered. Religious
influence or moral influence or habit may dispose men not only
themselves to obey, but to place their service in making others obey at
the disposal of the person to whom such influence belongs. A priest or a
prophet may be stronger than the king.