Sovereignty and Liberty: A discussion of sovereignty with civil and political rights leads naturally to a consideration of liberty. Sovereignty represents the authority of the state, liberty, the freedom of the individual The proper relation between the individual and the state has long been a problem on Which great thinkers have differed. Weather the individual or the state is the more important unit and which should be given precedence at the expense of the other when interests conflict, is a controversy that affects many aspects of human life.
There is, on the one hand, the doctrine that the state is a necessary evil, that it should do nothing except maintain peace and order, and thus give opportunity for individuals to develop freely according to their ability. On the other hand is the belief that the state should exercise large powers and subordinate the individual to the interests of the whole.
The various theories as to the best adjustment of individual and state activities and the proper scope of state functions will be discussed in the latter part of this volume. At present the question of liberty will be reviewed in its relation to the sovereignty of the state. The preceding chapter emphasized the fact that in every state some authority must exist, supreme over every individual and every association of individuals within the state. Its power is legally absolute and unlimited, and it may use force to compel obedience. This is called sovereignty.
Each individual, however, is interested in securing conditions under which he may achieve his highest development and freedom. Apparently there is a fundamental contradiction between sovereignty and liberty. If the authority of the state is absolute, how can liberty exist? If the individual has liberty, what has become of sovereignty ? Sovereignty carried to the extreme becomes tyranny and destroys liberty, and liberty carried to the extreme becomes anarchy and destroys sovereignty.
The efforts made by states to reach a satisfactory compromise between these two equally undesirable extremes comprise a large part of the history of politics, and no permanent solution has yet been reached. Changing conditions compel constant readjustments. However, a careful analysis will show the real nature of liberty and will prove that, instead of being opposed to sovereignty, it is dependent upon it. In fact, liberty, in any real and dependable sense, is possible only if sovereignty exists, and becomes more perfect and valuable as sovereignty is more completely and accurately organized.
Nature of a Right:
A century and more ago men spoke much of natural rights. Life, liberty, property, the pursuit of happiness, and other similar privileges were considered inalienable rights under the law of nature. A condition of perfect freedom, existing before governments arose, was conceived, often with a sigh of regret that this perfect “state of nature” could not last forever. Analysis shows the fallacy in such thinking. In a state of nature real liberty for all would be impossible.
Each person Would have “rights” only as he could secure them by superior force or cunning. The “natural Rights” of one would encroach upon the “natural rights” of others, thus destroying the free dam of all. That every person could have complete freedom to do as he chooses in all things is obviously absurd. Rights would he possessed only in a moral sense not in a legal sense. It is unfortunate that in the English language the same word, “right,” is used in a moral sense as the opposite of wrong and also in a legal sense as the opposite of legal obligation. In a state of nature each person would possess natural might but not natural right.
The greatest liberty possible for all results when each person has the right to do as he pleases while encroaching least upon the equal right of others to do the same. Liberty in society has therefore both a positive and a negative side. It includes right to free action and immunity from interference but in order to maintain such a condition some authority is needed that can set bounds to the liberty of each and protect the liberty of all. The organization that arose for this purpose is the state.
Since it is sovereign over all, it alone, through its law, can create and enforce rights and obligations. It is therefore the only source of real liberty. Evidently, then, the individual has no rights or immunities, except in a moral sense, against the sovereign state. The state takes his life as a penalty for offenses against its law, or, if needed, in war. The state takes his property in the form of taxes his liberty is limited by restrictions of many kinds his pursuit of happiness must not run counter to similar pursuits on the part of his neighbors. As population grows and society becomes more complex, the relations of man to man need more constant safeguarding and the liberty of each is more restricted for the best interests of all.
The state, then, is the only source of legal liberty. Its sovereignty alone enables rights to exist. Not only are its laws limitations on the freedom of individuals, but they are the only guaranties and defenders of individual freedom. Anarchy, instead of creating absolute freedom, would destroy it. Sovereignty and liberty are not contradictory terms, but correlative, the same things viewed from different aspects the former from the state’s point of view, the latter from that of the individual. The proper adjustment of authority and freedom, avoiding dangerous extremes, and the securing of rights as nearly equal as possible or all these are the chief problems of the state.
Meanings of the Term Liberty:
In ordinary practice the term “liberty” is used in various senses, which illustrate the tendency to loose thinking in political terminology, with resultant confusion.
1. Natural liberty:
In everyday usage the term is ordinarily associated with the desire to do as one likes, to be free from interference or from social conventions, to think and act as one chooses. Everyone has a vague notion of liberty and a desire for it, but few would agree as to what they mean by it.
2. National liberty:
Sometimes liberty is used as synonymous with political autonomy or independence, the freedom of a people from the control of another state. Thus the American colonies won liberty from England, or the Greeks fought a war for liberty with the Turks. The principle of self determination of nations implies liberty in this sense. From this point of view a free country is one which is independent. Evidently this is sovereignty in its external aspect. A people possesses national liberty if it forms a sovereign state. National liberty is simply external sovereignty, or independence.
3. Political liberty:
Sometimes liberty is used as synonymous with democracy, or popular government. Men speak of a free government if the people themselves determine how they shall be governed. In this sense liberty refers to the political rights possessed by the people, that is, the share in governing authority
which the state confers upon certain of its inhabitants. If these are extensive and widespread, the state is democratic, and many persons possess political rights, or political liberty. Other things being equal, a government controlled by the people may be expected to safeguard better the interests of all than a government controlled by a class or by a few, but this is not necessarily true. A benevolent despot may permit more liberty than a democracy that disregards the wishes of a large minority. Political liberty depends upon the location of sovereignty and the organization of government in each state.
4. Civil liberty:
Civil liberty consists of the rights and privileges Which the state creates and protects for its subjects. It implies the right of each to do as he chooses within the limits set down by law. It may involve protection from interference at the hands of other persons or protection from interference at the hands of the government. Civil rights are those rights to be free from restraint in the pursuit of their interests which the state confers upon its people by law and which it will protect in its courts. If properly organized, such rights will apply equally and impartially to all.
It will be observed that of the four types of rights named above, two natural and national are moral rights, while two political and civil are legal rights. Men possess natural rights in the sense that they believe that there are certain individual privileges with which other persons and the state should not interfere. If, however, these rights are not respected by the state and protected by its law, the only recourse is revolution. Peoples possess national rights in the sense that they desire independence and the right to govern themselves. If this desire is not granted by the existing sovereignty, the only recourse is war. Political and civil rights alone are rights in the legal sense. The are created by the state and guaranteed by its law. With these rights the remainder of this chapter will deal.
Political rights are possessed by those persons whom the state permits to share in the legal expression and administration of its sovereign power. They are exercised by voting or by serving as an official of the state. They are created by the constitution and lam of the state. They are usually regarded as privileges the exercise of which in optional on the part of citizens but some states make the performance of certain political duties, such as voting, compulsory, and impose penalties for refusal to act. Under certain conditions military service is generally compulsory.
when political rights are widely diffused, the government of a state is democratic hence political liberty is practically synonymous with democracy. Democracy may be direct, when those possessing political rights share directly in expressing the state’s will and in the management of its government, or indirect, when the voters elect representatives and delegate to them the work of carrying on the government.
The former type is possible only in small states, where citizens can meet together and express their Opinions the latter is necessary in large states, where it is physically impossible for such meetings to be held. By the devices of initiative and referendum, through which the voters may directly propose and decide on laws, an attempt has been made in some countries to retain certain aspects of direct democracy.
Underlying democracy is the idea that as many citizens as possible should share in the exercise of political rights, that the official positions of government should be open to all, and that the laws of the state should represent the will of the majority of its people.
Each state decides what persons shall possess political rights and the extent of such rights. Obviously, equal political rights for all are not possible. The sovereign power of the state cannot, in practice, be divided, as Rousseau held, into equal fractional parts for each person. The state must organize its government with a view to efficiency and to successful practical operation. Both reason and experience show that it is desirable to exclude certain persons from any share in government and that among those who take part some must have a larger share than others.
The theory of equality on which democracy is based must be modified by practical considerations of expediency and order. Mob rule and disregard of the wishes of minorities, which are dangers in extreme democracies, may be as undesirable as despotism. The problem of the state in creating political rights is to secure an organization in which legal sovereignty will coincide as nearly as possible with political sovereignty, in which as many persons as possible may possess political rights as nearly equal as possible without destroying the efficiency of the government, and in which general public Opinion may be made into law without tyrannizing over those who hold different opinions. Democracy is not an end in itself, but a means to individual and social welfare and political rights are for those who are able to use them wisely.
Content of Civil Rights:
A discussion of civil rights, which are the legal immunities of persons protected by the state against interference, must include the content of such rights and the methods by which they are guaranteed against other persons and against the government. The elements that compose civil rights, or individual liberty, have varied in different states and at different times. In modern civilized states the following are generally held to be fundamental, though difference of opinion exists as to the extent of these rights and the method of their protection.
1. Right of life:
All rights depend upon life for unless life is secure, no rights are possible. Every state, however primitive, makes some provision for personal safety. In early times murder was avenged by the family and friends of the murdered person in modern states murder is punished by the state itself, usually by the most severe penalties. The idea of a life for a life, in capital punishment, includes both the desire for revenge and the idea of removing one Who is dangerous to society. The growing demand for the abolition of capital punishment represents a belief that even a murderer has a right to life. Since society regards human life as valuable, the state views suicide as undesirable and sometimes punishes those who unsuccessfully attempt it. The right to life also involves the right of self defense and the use of force to protect one’s life.
2. Right of personal freedom:
mere life with Out the right to exercise one’s faculties and to determine the general conditions of life would be valueless hence a certain amount of personal freedom is a desirable civil right. Slavery is generally condemned because it prevents a man from determining his own life. Any interference with the right to move or act as one chooses, not demanded by the general good of society, is resented. Physical restraint by the government for unjust cause led to the demand for the writ of habeas corpus, in order to secure a prompt and fair hearing and to make provision for redress for those wrongly arrested.
3. Right Of property:
Property of some sort is essential to the existence of man, and the desire for ownership is deeply seated in human psychology. Ideas concerning property change from age to age, and with these changes go changes in property rights. At present much controversy is waged over the problem of public as against private ownership and over the degree of government regulation of property interests that affect social welfare. Though the state protects private property against theft by other individuals, there is a growing tendency for the state itself to interfere increasingly with the property of its citizens.
4. Right of contract:
Good faith and honesty in the carrying out of legal agreements are an essential basis of society hence the state protects and adjusts the rights and obligations growing out of contracts. At the same time it permits only such contracts as it considers conducive to the general welfare. As in the case of property, the tendency today is for the state to interfere increasingly with the freedom of contract for purposes of social regulation.
5. Right of free opinion and expression:
In a free government freedom of opinion and its expression are permitted within certain limits. Public policy requires that attempts be not made to stir up violence or revolution, and that the reputation of other persons be protected against attack. Some states forbid criticism of the government and prohibit discussion of questions of public policy. In time of war, freedom of expression is usually limited for the purpose of maintaining internal unity and solidarity.
6. Right of freedom of conscience:
While states have frequently permitted only a certain type of religious faith and Worship, the tendency in the modern World has been toward religious freedom and tolerance. Church and state, once closely interrelated, tend toward separation. The church confines itself generally to spiritual matters, and the state tends to give up its official support of a particular church. While the state cannot control personal opinions of right and wrong, freedom of conscience does not give the individual a right to refuse to obey the laws of the state because they conflict with his moral ideas. The state cannot control beliefs, but it does control outward actions that result from certain beliefs.
7. Right of association:
In modern society individuals enter into relationships for many purposes and create associations of many kinds. Some of these are temporary and slightly organized others are permanent with elaborate organization. Some exist wholly within the boundaries of a particular state others are international, and extend over many states. Social clubs, Scientific associations, religious bodies, labor unions, and industrial and commercial corporations are among the most important of such groups. Some thinkers argue for the inherent rights of such associations and claim for them sovereign powers in their respective fields. In the modern world, however, these associations come under the legal control oh the state. The state permits wide freedom in the formation of such associations and allows them to exercise large powers. Nevertheless, it may for bid certain types of association, and may regulate the others when they endanger the state or when they interfere with social welfare.
8. Right of family life:
Though the state regulates marriage and divorce and enforces certain obligations in the relations of husband and wife and of parents and children, it leaves a large degree of freedom to the family in the regulation of its own relationships and in the inheritance of its property. A marked tendency in the modern world toward the’ legal equality of women in family relationships may be noted.
9. Right of equality before the law:
In earlier times certain classes possessed special privileges or were judged by special laws The modern tendency is to enforce the same law over all persons in the state and to give all persons equal legal rights and privileges in the protection of their civil liberty.
The idea of civil liberty arose when governments were despotic and when their arbitrary power was feared. Consequently, civil rights were mainly negative, consisting of limitations placed upon the power of the state. With the growth of democracy, distrust of governmental action declined, and the state, controlled by popular will, came to be considered as a promotive agency for social welfare.
Under these conditions, recent theories of civil liberties have changed, and emphasis is placed increasingly on state action which may limit the freedom at some for the purpose of widening the opportunities of the many. In the Atlantic Charter, freedom from want and fear were added to the older concepts of freedom of thought and religion. The so called “G. I. Bill of Rights” consists of various benefits desired by veterans from positive state action.
Recent statements of civil rights include the right of employment, the right of an adequate wage, the right of Workers to strike, the right of old age benefits, the right of medical service, the right of education, the right of freedom from racial discrimination, and many other rights. It is obvious that this conception of civil liberty is not concerned with negative restrictions upon state interference, but rather with positive and promotive state action to confer benefits upon certain persons or classes within the state. It also indicates the increased interest of the state in the field of economic and social affairs, and the growing tendency toward dependence upon government in these fields
Concepts of individual rights depend upon prevailing ethical standards. The ancient Greeks defined justice as giving to each his due. This was based on the idea of human inequality and the desire to fit each person in his proper place in order to secure harmony in the state. Modern ideas of justice emphasize rather the idea of human equality and equal rights for all. Both views have value. Insofar as persons are unequal in character and ability, it is recognized that honors and rewards should be given for outstanding talents and services. Insofar as persons axe Equal, it is proper to provide equality of opportunity, equality before the law, and the right of all to shale in political power. A sound political science asserts the value of expert as well as the importance of the common man.
It must he remembered that civil rights are not absolute but relative. They are not natural rights, but legal rights created by the state and conferred by it upon its individual members. Any of them may be destroyed by the state or may be widened or narrowed as the state believes desirable for the protection of its own interests or for the furthering of the general welfare. The individual possesses no legal rights against the paramount sovereign power of the state.
Guaranty of Civil Rights:
A further analysis of the civil rights that the state creates and safeguards shows that interference with these rights may come from
(1) Other individuals or associations of individuals
(2) The government of the state itself. A well organized state must protect the civil rights of its people against both kinds of interference.
1. Protection against other individuals and associations:
The civil rights of individuals are protected against encroachment on the part of other individuals or associations of individuals by the law of the state, enforced by its regular governmental organs, especially the police and the courts. The body of law created for the purpose of adjusting the relations of individuals to one another is called private law. In its enforcement the government is the arbiter but is not a party to the controversy. The adjustment of man’s relations to his fellows was one of the chief purposes for which the state arose. Further development in this field consisted in making such rights more definite, in making governmental enforcement of them more certain, and in extending equal rights to all classes in the state. Definite law, sure enforcement, and equality before the law marked the advance of civil liberty in the relation of man to man.
2. Protection against the government:
In so far as civil rights consist of immunity from governmental interference, they are of comparatively recent origin. In earlier times the whole sovereign power of the state was vested in the ordinary government. Theocracy and despotism crushed individual will, and all the activities of man were subject to state control.
Occasionally rulers promised reluctantly to respect certain liberties, but it was not until modern constitutional states arose that the idea of civil liberty as a field into which the government might not enter became possible and that legal checks were placed on the manner and extent of governmental action.
Civil rights are protected against governmental interference by the constitution, or public law of the state. In adjusting the violation of such rights the government is not only the arbiter but also a party to the case that is, one organ of the government will act as judge in deciding a dispute between the individual and some other organ of government.
Modern states differ in the legal guaranties that their citizens possess against encroachment on the part of the government in the field of civil rights. Such differences depend on the nature of the constitution and the method of interpreting and amending it. Every modem state is based upon a body of fundamental principles, written or unwritten, called a constitution.
In accordance With these principles the state is organized, that is, its , government is created, the. scope of its powers and the manner of their exercise being broadly outlined. In this way the state organizes itself behind the ordinary government and places certain legal restrictions upon it. By means of a bill of rights in the constitution the sphere of civil liberty, in so far as immunity against the government is concerned, is indicated, since those powers forbidden to the government are reserved for the individual.
Consequently the manner by which the civil liberties guaranteed in the bill of rights may be legally protected against the various organs of government determines the legal guaranties which the individual possesses against governmental encroachment.
If the constitution may be amended by the regular lawmaking body of the government, as is the case in some states, the legal position of the bill of rights is precarious, as it may be destroyed or modified by the ordinary government. If, however, the cow constitution may be amended only by a special body or by special procedure, the difficulty of amendment gives a certain security to the bill of rights.
Even more important is the question of what organ of government has the final right to interpret the constitution, and whether or not such organ has the legal power to prevent other organs of government from exceeding their legal powers. In most states the national lawmaking body is the final interpreter of the constitution, and whatever laws it passes are legal, even though they interfere with the civil rights granted in the constitution.
In such cases the good sense of the legislature or the pressure of public opinion behind it alone protects the civil rights of individuals against governmental encroachment. in the United States, however, the Supreme Court is the final interpreter of the constitution and its power to declare laws unconstitutional, if the ordinary lawmaking bodies exceed their legal ,powers, gives to the bill of rights a special legal protection.
If,however, the Supreme Court, in its interpretation of “due process of law,” believes that proper procedure has been followed, it may permit a considerable infringement of the personal rights of individuals. To some extent the system of separation of powers and of checks and balances, by which one department of government shares in the functions of the others, serves as some protection to civil rights. For example, the president’s power to veto a law or the Senate’s right to reject a treaty might he used to protect the civil rights of individuals against governmental encroachment.
While devices of this sort may be used to guarantee the civil rights of individuals against interference by particular organs of government, the individual possesses no civil rights against the sovereign power of the state. The state may protect civil rights, through its law, against interference by other individuals or, through its constitutional system, against interference by any single organ of government.
The sovereign state, however, always possesses the legal power and the legal machinery through which it may, if it chooses, destroy or limit all civil rights. The liberty of the individual is defended against the government by the sovereign power of the state, which makes and maintains and can change the government, and by the same power, through the government, against encroachment from any other quarter Against that power itself, however, there is no defense.
The fact that a given state provides a legal method of Protecting civil rights against governmental interference does not guarantee that the sphere of civil liberty will be greater in practice in that state than in one where no such provision is made. The degree of liberty actually possessed depends upon the way in which the government is operated. In England, where civil rights are legally at the mercy of Parliament, the citizens enjoy a much greater degree of freedom from governmental interference than in certain Latin American states or in Russia, where the constitutions contain elaborate bills of rights.
A governmental organ such as the British Parliament, that possesses legally unlimited powers, may voluntarily leave to individuals a large degree of freedom. On the other hand, a governmental organ that is restricted by constitutional provisions may ignore such restrictions, especially if it is itself the interpreter of the constitution. The real guaranty of individual liberty is a public opinion that is tolerant and liberal, and a government that represents this attitude in practice.
Adjustment of Sovereignty and Liberty:
The great problem of government is the satisfactory reconciliation of authority and freedom. Upon its solution both individual welfare and the state‘s existence depend. The ideal condition requires a Sphere of civil liberty sufficient to secure individual interests, and a government whose commands are definitely expressed and authoritatively enforced. At the same time there must be the minimum amount of friction between government and citizen, in order to maintain the stability of the state.
Various political methods and devices have been tried in the effort to combine authority and freedom but frequently they have degenerated into the extremes of despotism or anarchy, and the state, from stagnation of revolution or conquest, has perished.
The system that thus far has been most satisfactory places sovereignty and liberty in the same hands that is, it gives the mass of the people not only a sphere of freedom but also a share in authority. Thus they, directly or indirectly, as government, create and enforce the rights which they possess as citizen in a word, they govern themselves. The democratic state, with as great a degree of civil liberty as the general good Permits seems to he the most satisfactory form of political life for those peoples who are competent to manage their public affairs.
1. Democracy and despotism:
Only after long experience has mankind reached even an imperfect solution of the problem of government. Internal order was secured by the powerful organization of the Roman Empire but the absence of representation and local self government created a great gap between government and citizen and destroyed liberty. After the fall of Rome anarchy prevailed and it took a thousand years to restore political organization and authority. By the sixteenth century government was again powerful, but a conflict of interests between king and people still prevented liberty.
Increasing political consciousness on the part of the people led them to demand civil rights and a share in government. By gradual development or by revolution, constitutional, representative democracy was created. It was soon realized that people needed protection against their representatives and against their own hasty prejudices. For this purpose authority was divided among various departments of government to prevent each from becoming too strong and to prevent hasty action. In addition, by widening the suffrage, by frequent elections, by referendums, and by local self government, the mass of the people retained a direct share in political power.
Finally, by written constitutions, frequently difficult to change, stability of organization was secured and, by bills of rights in the constitutions, a sphere of individual freedom was created into which the government was forbidden to enter. In this way modern states attempt to reconcile sovereignty and liberty. Political and civil rights are widely extended, and the conflict between authority and freedom is avoided, since rights are created and enforced by the authority of the people who possess them.
2. Individualism and paternalism:
Two questions are of paramount importance in state life:
(1) Who shall govern the state?
(2) How much authority shall the state exercise?
The first is the problem of state organization and depends upon the distribution of political rights. The second is the problem of state function and involves the nature and extent of civil rights. Extremes in either case are dangerous. In its organization the state must avoid such restriction of political rights as creates despotism, and such extension of political rights as creates incompetent mob rule.
In its functions the state must avoid such excess of civil rights as destroys authority and creates anarchy, and such limitation of civil rights as leads to excessive paternalism. Each state must work out these adjustments on the basis of its own conditions and the nature of its own people, and must be constantly vigilant to make new adjustments as conditions and people change.
Modern Opinion differs widely on both the questions above. On the problem of state organization and political rights, opinion shades off from those who believe in wide democracy to those who prefer government by the efficient and able few. On the problem of state function and civil rights, opinion varies from those who desire an extreme individualism to those who argue for extensive state socialism.