Delphi Complete Works of Stephen Leacock, page 428
3. Criticism of the Doctrine of Sovereignty; Sir Henry Maine’s Objections. Such is in the main the conception of sovereignty and law which is particularly associated with the modern English school of jurists, the analytical school, as it is often called. It may be considered on the whole the most satisfactory basis for an analysis of the political state. It has, however, met with severe and searching criticism, and has by no means received a universal acceptance. It is only reasonable, therefore, to present in connection with it some of the chief points of attack. The objections raised against it are directed to show that it is only of a formal and abstract nature, that it is inadequate in that it does not really indicate the ultimate source of political authority, and that it presents an erroneous conception of the nature of law.
The first of these objections to the Austinian theory is especially urged in the criticism offered by the English jurist Sir Henry Maine in his Oxford lectures on the “Early History of Institutions.” From his seven years’ experience as legal member of the council for India, Maine was brought in contact with a civilization of an essentially different character from the environment of English legal institutions which had been the basis of Austin’s work. In Eastern countries immemorial custom reigns supreme. The idea of deliberate statutory enactment is alien to the oriental mind, and the most ruthless of Eastern despots finds his power controlled by the barriers of ancient usage and religious awe. Maine was, therefore, led to question whether there is “in every independent political community some single person or combination of persons which has the power of compelling the other members of the community to do exactly as it pleases.” The presumption that every community, except during temporary intervals of disturbance, contains this individual or collegiate sovereign “as certainly as the centre of gravity in a mass of matter,” seemed to him unwarranted by historical or actual fact. Particularly is this the case with communities of the oriental type. Maine instances the example of Runjeet Singh, the despot of the Punjaub, “the smallest disobedience to whose commands would have been followed by death or mutilation.” In spite of this ruler’s extensive power he never “issued a command which Austin would call a law.... The rules which regulated the lives of his subjects were derived from their immemorial usages, and these rules were administered by domestic tribunals.” The inevitable conclusion seems to be that the conceptions of sovereignty, state, and law adopted in the Austinian jurisprudence are inapplicable to communities of this description. But it is not only in regard to oriental society that Maine finds Austin’s analysis inadequate. Even in the world of western civilization it is only true as the result of a process of abstraction which “throws aside all the characteristics and attributes of government and society except one,” namely, the possession of force; this explanation of political power by reference solely to a single attribute disregards at the same time “the entire history of the community, ... the mass of its historic antecedents, which in each community determines how the sovereign shall exercise, or forbear from exercising, his irresistible coercive power.”
The nature of this objection had, indeed, been in some measure anticipated by Austin himself. In order to cover all those cases of usage in which not the direct command of the sovereign but dictates of customary procedure obtained sway, he laid down the maxim, “What the sovereign permits he commands.” The application of this doctrine may be best seen in the case of the English common (or customary) law. This is a body of regulations never expressed in the form of statutes issued by the sovereign Parliament, but existing from ancient times, and constantly modified and expanded by the interpretation of the courts. It would be quite wrong, Austin argues, to hold that the existence and continuance of this body of law is any indication of a limitation of the sovereign power of Parliament. For since the latter is admittedly competent to alter or abrogate the common law as it sees fit, the continued existence thereof is to be viewed as virtually by command of Parliament. This argument is undoubtedly true in reference to the legal validity of the common law. The attempt, however, to apply it to such cases as that of the Punjaub despot seems entirely erroneous. For in this instance the sovereign has no alternative but to “permit” what he cannot alter. Only an exaggeration of terms could convert this into sovereignty. On the same ground any one might “permit” the law of gravitation to continue in force.
It may perhaps reasonably be held that Austin’s analysis is applicable to modern civilized states, but inapplicable to half-organized or primitive communities. Even in the case of civilized states, it is true that the theory is in a certain sense an abstraction. “It is true,” says Sir James Stephen, in speaking of the theory of sovereignty, “like the propositions of mathematics or political economy, in the abstract only. That is to say, the propositions which it states are propositions which are suggested to the imagination by facts, though no facts completely embody and exemplify them. As there is in nature no such thing as a perfect circle, or a completely rigid body, or a mechanical system in which there is no friction, or a state of society in which men act simply with a view to gain, so there is in nature no such thing as an absolute sovereign.” With these limitations the Austinian theory may be looked upon as substantially correct. Its application is to be viewed as limited to communities definitely organized. The analysis of political power which it offers is not meant as an explanation of the ultimate source, the first cause, of authority, but merely intended as a universal abstract formula, indicating the method of its operation in the modern world. To accept the doctrine in this sense, is of course necessarily to restrict the connotation of the terms state and law. The term state will include only communities possessing the requisite finality of organization, and fixed relations of command and obedience. A law will connote only a command issued, either directly or indirectly (through deliberate refusal to contravene an established usage) by the sovereign organization of the state. What is thus lost in width of connotation will be gained in precision and significance.
Many authors prefer, however, to widen the terms state and law, in order to meet Maine’s criticism, and to include the oriental or other communities whose political cohesion does not correspond to the Austinian analysis. Woodrow Wilson, for instance, presents a conception of law which does not identify it with a definite command, but endeavors to include in it those customary usages which have become of binding force. “Law,” he says, “is that portion of the established thought and habit which has gained distinct and formal recognition in the shape of uniform rules backed by the authority and power of government.” Of these rules deliberate enactment is only one of the contributory sources. They arise in part from long standing custom “shaped by the coöperative action of the whole community, and not by any kingly or legislative command.” Among the other sources of law are the rules of conduct dictated by religious belief, and the decisions of those who adjudicate upon the law already existing and thus expand its meaning. The view here adopted by Professor Wilson is intended to harmonize the analytical account of law with the criticism offered by Sir Henry Maine. But it is perhaps open to question, whether in the case of civilized states the maxim “what the sovereign permits he commands” will not bring the sources of law above mentioned within the sphere of the Austinian formula.
4. Theory of Political Sovereignty. In addition to the criticism of the Austinian theory of sovereignty thus indicated, exception has been taken to it upon a somewhat different ground. The conception of legal authority, it is argued, though undeniable as far as it goes, does not go far enough; while indicating the person or body of persons legally competent to issue sovereign commands to the rest of the community, it does not really trace out the ultimate repository of political power. In a despotic monarchy, the will of the monarch may be the sole lawful authority, but the monarch himself may be merely the pliant tool of a cunning priest or dominating vizier. In countries with representative government, the elected governing body may have or seem to have a temporary legal control, but what are we to say of the general body of electors, whose will they represent, and from whom they derive their authority? Is it an adequate explanation of political cohesion and obedience to stop short of the legal supremacy of a king or legislature, whose power may be nominal, illusory, or delegated, and to refuse to recognize the real and paramount source of authority which lies behind it?
On these grounds several writers have recently sought to amend the Austinian theory by appending to the conception of pure legal sovereignty that of real, or “political sovereignty.” Their intention is not to set aside the result of Austin’s analysis, but merely to draw attention to the fact that it does not seem to offer a complete explanation of the nature and location of supreme political power. “Behind the sovereign which the lawyer recognizes, there is,” says Professor Dicey, “another sovereign to whom the legal sovereign must bow.” Professor Sidgwick illustrates the point involved by constructing hypothetical cases in which the ultimate political power is clearly not in the hands of the legal sovereign. “An irresponsible dictator appointed by a popular assembly for a term of years and not desiring reappointment” might be said to be legally and actually sovereign. But should he be anxious for reappointment, then the assembly to whose wishes he must bow becomes the paramount political influence, and his legal sovereignty is no longer the final seat of actual power. Or let us “suppose that a monarch habitually obeys a priest, not from fear of the extra-mundane penalties threatened by the latter, but from fear of finding it difficult to obtain obedience from his subjects if they believe him to be a special object of God’s anger — we shall agree that he no longer possesses completely sovereign power.” Following upon this line of argument we might well expect to find that the legal and the political sovereigns would but rarely coincide. In one state the priesthood, in another the military or landed classes, in another the personal entourage of the king or the predominant influence of a metropolis, might supply the real motive power that controls the public administration.
Here it might well be suggested that the sovereign political power would in many cases lie with the general mass of the people, or at any rate with the general mass of voters, who constitute in democratic countries about one fifth of the entire population. Austin himself, in this particular, fell into an amazing error in that he attempted to attribute not the political but the legal sovereignty itself to the body of the electorate. The fallacy is here obvious. For although the voters are empowered by law to elect members of the legislature at stated intervals, they have (legally) no power of political action beyond this. Under most governments they cannot pass a law or negative measures of the legislature. In Great Britain, for instance, the Parliament (legally speaking) would be perfectly competent to pass a law declaring its own existence permanent and robbing the voters of their electoral privileges. Only in a country where the system of the initiative and the referendum were made obligatory and universal could the electors be said to be legally sovereign. But without falling into this confusion whereby Austin mars the precision of his own system, it may be argued with much plausibility that the ultimate political sovereignty rests with the electorate. Much, however, may be advanced against this view. Is it not quite conceivable that the voters themselves may be under the dominance of a priesthood, or practically under the dictates of the land-owners or aristocracy or some particular class? In such cases the political sovereignty would have to be traced a step beyond the electorate. Is it not, moreover, to be supposed that the electorate may be largely influenced by the other four fifths of the nation, who constitute the non-voting class? It does not seem to follow that the voters of a democratic country always and of necessity represent the final and ultimate source of authority.
5. Criticism. Indeed, the more one searches for this final authority the more it seems to elude one’s grasp. At its first statement the idea of a political sovereignty appears eminently reasonable. On closer examination it becomes a sort of political “first cause,” and is as unfindable in the domain of politics as in that of physics. The moment one passes from the dry certainty of the Austinian conception of legality, all is confusion. The particular set of persons in a modern state who are invested with unlimited law-making power are a definite and findable body. The particular person, or set of persons, whose will is in reality supreme, fades upon analysis into a vague complexity.
Professor Ritchie and others have sought to avoid this difficulty, by laying down the theory that the ultimate repository of political power is always found in the mass of the people. By whatever routes it is traced, whether directly through electoral power, or indirectly through influence, intimidation, or potential rebellion, the final source of authority is here to be discovered. “The people” possess the physical power. In the last resort — the appeal to force — they are bound to prevail. Any form of rule to which they submit exists therefore only by virtue of their tacit consent. We have thus a theory of popular sovereignty carried to an extreme point. Such a theory does not content itself with saying that the people, the majority of the people, ought to possess the supreme power, but that in all cases they actually do possess it. Having the physical superiority which would enable them if sufficiently provoked to annihilate the existing government, there must always be limits to the extent of coercion that they will suffer. Obedient as they may be within these limits, they are in the last resort the masters. The consent by which they permit the existence of the government, is a tacit, and perhaps unconscious, acquiescence rather than the explicit formula of contract that was present to the minds of Rousseau’s citizens; none the less it is true that they do give this consent, and that it is the real universal basis of political sovereignty. “The Czar of all the Russias,” says Mr. Ritchie, “rules by the will of his people, as much as does the executive of the Swiss Federation.”
Attractive as is such a theory of popular sovereignty, it rests upon grounds essentially fallacious. It assumes that the superiority in actual physical force must of necessity rest with the mass — the majority — of the people. To suppose this is to leave altogether out of sight the question of military equipment, organization, and mutual understanding. A nation of a million unarmed men could easily be overawed by a force of a hundred thousand soldiers equipped with modern weapons and acting as a disciplined unit. Because a hundred convicts “acquiesce” in the control exercised by a dozen armed sentinels, it cannot be argued that the power of the sentinels rests either immediately or ultimately upon the consent of these convicts. Whatever be the proper interpretation of the political cohesion of modern Russia, it is at least conceivable that the support extended to the autocracy by the vast army in its pay may have as much to do with its maintenance as the good-will of the people at large. It seems evident upon examination that the numerical majority is not of necessity always the stronger power. It becomes so only in proportion as it enjoys the advantages of organization, equipment, and ability to act on a preconcerted plan. Hence in order to make the theory of political sovereignty stand upright it is necessary to again shift the ground and to claim that the ultimate sovereignty lies not with the mass of the people, nor with the numerical majority, but with the strongest group of persons trained to act together. But since a group is usually trained only to act together in a prescribed way, and at the dictates of a particular person or set of persons, it is clear that it is not the collective will of this armed force itself which exercises the supreme control, but that of the person or persons whom they are individually trained to obey. Thus the search for ultimate sovereignty relapses into the same vagueness as before.
6. Dual or Divided Sovereignty. The peculiar situation of the United States in reference to the exercise of supreme and unlimited power has given rise to another attempt to alter this universal formula of a single sovereign body. In this country, as already said, neither the federal government nor the government of an individual state has unlimited power. The precise nature of the constitutional power of the two was long a subject of intense controversy. In this controversy there was developed the theory of a divided or dual sovereignty. According to this doctrine the totality of sovereign power was divided between the state and federal governments, each of which was sovereign in its own province, but was legally limited outside of its own province by the sovereignty of the other. Such a view of sovereignty is utterly inconsistent with the conception of sovereign power discussed above. The proper application of the analytical view of sovereignty, to a federal government will be discussed in dealing with the general subject of federal organization.
READINGS SUGGESTED
Austin, J., Lectures on Jurisprudence (4th edition, 1879), vol. i, lecture vi.
Maine, Sir H., Early History of Institutions (1875) (4th edition, 1885), chaps. xii, xiii.
Sidgwick, H., Elements of Politics (2d edition, 1897), chap. xxxi.
FURTHER AUTHORITIES
Bryce, James, Studies in History and Jurisprudence, Essay X (1901).
Merriam, C. E., History of the Theory of Sovereignty since Rousseau (1900).
Stephen, Sir James, Horæ Sabbaticæ, Second Series, chap. iv (1892).
M’Kechnie, W. S., The State and the Individual (1896).
Ritchie, D. G., Principles of State Interference (1891).
Dicey, A. V., Law of the Constitution (1st edition, 1885).
CHAPTER V. THE LIBERTY OF THE INDIVIDUAL
1. FORMULATION OF the Idea of Civil Liberty; its Dependence on a Coercive Sovereign Power. — 2. Special Senses sometimes attached to the Term Liberty. — 3. Organic Theory of the State. — 4. Criticism. — 5. Elaborate Analogies of Spencer, Schäffle, etc.; the Personality of the State. — 6. Criticism.
