The modern State is a sovereign State. Sovereignty in political science is, therefore, independent in the face of other communities. It may infuse its will towards them with a substance that needs not to be affected by any external power’s will. It is, moreover, internally supreme over the territory that it controls. Issues orders to all men, and all associations within that area receive orders from none of them. Its will is subject to no legal limitation of any kind. What it purposes is right by the mere announcement of intention.
But such a theory of sovereignty has at least three aspects from which it demands scrutiny. It needs, in the first place, historical analysis. The State, as it now is, has not escaped the categories of time. It has become what it is under historical evolution. That development both explains the character of its present power and, at last, offers hints as to its possible future. It is, secondly, a theory of law.
It makes of right merely the expression of a particular Will, without reference to what it contains. As will be seen, such a definition has about it an unquestionable logic, but the assumptions upon which it is compelled to build make it valueless for political philosophy.
The modern theory of sovereignty is, thirdly, a theory of political organization. It insists that there must be some single center of ultimate reference in every social order, some power that can resolve disputes by saying the last word that will be obeyed. From the political angle, such a view, as will be argued, is of dubious correctness in fact, and it is. It least probable that it has dangerous moral consequences. It would be argued that it would be of lasting benefit to political science if the whole concept of sovereignty were surrendered.
In fact, we are dealing in power, and what is important like power is the end it seeks to serve and the way it serves that end. These are both questions of evidence related to, but independent of, the rights born of legal structure.
Historically, there is no limit to the variety of ways in which the use of power may be organized. Historically, the sovereign State is merely one of those ways, an incident in its evolution, the utility of which has now reached its apogee. The problem before us has become, because of the unified interests of humanity, that of bending the modern State to the interests of humanity. The dogmas we use to that end are relative of little import, so long as we are assured that the end is truly served.
The territorial and omnipotent State is the offspring of the religious struggles of the sixteenth century. Before that time, Western civilization was regarded as a single Commonwealth in which sovereignty had no existence in the modern sense. In theory, Ultimate power was the possession of a view of right, which found embodiment in Pope and Emperor. The two powers clashed, and Rome’s imminent victory was frustrated by a moral degeneration coincident with nationality growth. The appeal against a Church that remained obstinately deaf to demands for reform involved creating the national State.
For when Luther appealed against the divine Church, he was driven to assert the divinity of States, that the right of a secular body to interfere might be made manifest. There were European princes ready to accept his views. When they met the challenge of a reviving Church, insistence upon their sovereignty and the unified allegiance implied was the simplest theoretic justification they could discover. The State became incarnate in the prince. What he willed was right because it was his will.
Right ceases to mean, as in the Middle Ages, a particular aspect of universal justice. It comes to mean that which emanates from a single center in the body politic anti by its predominating unity gives strength and decisiveness to the community’s striking power. The Republic of Bodin, in which the theory of sovereignty is first treated in modem terms, shows clearly the urgency at this perspective to his generation.
Bodin was making a plea for peace in an age of war. Jar as quad inseam est is the direct high road to the goal. If men can be persuaded to accept the sovereign organ’s will as pro eminent, the opposition is deprived of its main pretensions, and Henry IV, for example, may restore to France the prosperity religious conflict has endangered.
Thus, the sovereign State emerges to vindicate the supremacy of the secular order against religious claims, and it forces the clerisy into the position of subordinate authority from which, after the Dark Ages, it had itself so painfully emerged.
It is argued by Bodin, as later by Hobbes in a period of similar disintegration, that if the State is to live, there must be in every organized political community some definite authority not only itself obeyed, but also beyond the reach of authority. This was the root of Hobbes’s argument. The will of the State must be all or nothing. If it can be challenged, the prospect of anarchy is obvious. So, too, in their different ways, with the views of Rousseau and Chief Justice Marshall.
A sovereign people, they argued, cannot suffer derogation from the effective power of its instruments; it will be unimpeachable to direct the destinies with which it is charged. We must not forget the atmosphere, not merely in which the theory of sovereignty was born, but also in which, at the hands of each of its great exponents, it has secured new emphasis.
From Bodin to Hegel, that has always been a period of crisis in which the State seemed likely to perish unless it could secure its members’ unified allegiance. That allegiance might be secured if legal superiority was vested in the sovereign organ. So long as religious intolerance was a European habit, it was difficult for the suppressed minority to accept the View that legal superiority implied moral authority. With the coming of toleration, however, that difficulty was removed.
The fact that religious difference was now permanently recognized left the State the sole association with an identical claim upon those who dwelt within its boundaries. It provided a ground whereas it seemed, all who possessed citizenship might meet in common. There, at least, there seemed to be neither Jew nor Greek, neither bond nor free.
The social bond seemed to find, particularly as the forms of democratic government made their way, its ultimate expression in a State with no partial character about it differently from all other associations. The State embraced all men because it was the one compulsory form of association. It was easy to identify its sovereignty with pro eminence.
Another cause contributed to this elevation. Driven by the Reformation from a universal competence position, the papacy sought an international position’s compensation. As the French King was to Frenchmen abroad, the Jesuits argued that it was the papal relationship to Roman Catholics. Behind that claim, indeed, there lurked certain shadowy vestiges of supremacy which disappeared only with the regretful recognition of permanence in the secular State.
What was important was the notion that rules were necessary to regulate affairs between the organs of sovereign powers. The hinterland between nations could, so Grotius magisterially declared, become the subject of agreements not less morally binding than the will of States was binding upon their subjects. It was agreed that the State was, through its governmental organ, the natural unit through which such agreement might be made.
When States became, in the course of the seventeenth century, the natural and ultimate channels of diplomatic intercourse, the final safeguard of their subjects abroad’ rights, the last link in the chain of their predominance was complete.
Thenceforth, their will knew, legally at least, no external check of any kind. The sanction of international law was their assent to it, and the implication of assent was a withdrawal as free as the original assent. What was called, in brief, the comity of nations did not imply, except as metaphor, the reintegration of the medieval Republican Christiana?
The acknowledged rights of humanity became simply those rules which States agreed to observe, rules which, as in Belgium in 1914, States were legally free to break if they are so pleased.
The chain was then complete. The individual could then read the details of his rights and duties in the list of orders and prohibitions enforced by the government under which he lived. At home, he could have those powers implied in the fabric of its statutes. Abroad he could use those privileges its dexterity had from the courtesy of other States.
What is most striking to the observers is that it represents not an absolute but a historical logic. Internationally, it is not difficult to conceive the organization of an allegiance that reaches beyond the limits of the State.
For instance, to leave with a handful of men, the power to make war may well seem anachronistic to those who envisage war consequences. When State sovereignty in international affairs was recognized, no authority existed to which that type of control might be entrusted. It is arguable now that an authority predominant over States may be conceived to entrust the regulation of those affairs of more than national interest.
That is clear in the case of war. For most, it is clear also in the case, for example, of those native races who cannot pit their skill in exploitation against the modern trader’s genius. Wherever, in short, the interests of a unified and interdependent world seem to demand an international standard of conduct, the corporate organization of that standard, and its corporate application, are at least conceivable.
We shall discuss later what is implied in such a notion. Here it is sufficient to insist that it involves abolishing State sovereignty at any rate on the international side. It sees the State simply as a unit in a society of States, the will of which would then be set by a process in which it would have no final say.
It even implies, as the acceptance of this doctrine grows, a duty on the part of the individual citizen of a recalcitrant State to look beyond the emotional penumbra of patriotism to the issue of conflict. He might then, perhaps, choose to declare that obedience to the will of the society of States is, in the given instance, the highest duty that he knows.
The logic of this evolution is not dissimilar on the internal side. Any study of the State’s working will be compelled largely to concern itself with the history of the limitations upon power exercise. Those who practice the theoretic substance of sovereignty find themselves sooner or later deprived of it. For the State must work through persons. The government, which acts as its sovereign organ, never, as a matter of history, has the prospect of permanence if it consistently seeks to be absolute.
Civil war and revolution in the England of the seventeenth century,1789 in France, 1917 in Russia are all of the footnotes to sovereignty. They seem to mean that power always has to be organized for action following rules and that the obedience of the community has been proffered to the government only when it abides by those rules.
Power, that is to say, when vested in several persons, is not only limited as to method but also as to the objects to which it can be directed. The sovereignty, that is to say, is historically conditioned always by the environment it encounters. It is secure only when it is so exercised with responsibility. But the definition of sovereignty is that it is unlimited and irresponsible, and the logic of its hypothesis is thus directly antithetic to the experience it has encountered.
Another point of interest may here be made. Those who have most powerfully shaped the theory of sovereignty Bodin, Hobbes, Rousseau, Bentham, and Austin were, except Austin, all of the writing before the nature of a federal State had been at all fully explored.
Either, like Bodin, they thought in terms of the unlimited power of the prince, or, like Bentham, in terms of the unlimited power of the legislature, and they might, like Rousseau, deny legitimacy to any act which emanated merely from a representative organ. The difficulty of fitting their assumptions to a State like the United States is obvious.
The congress is a limited body, the powers of which are carefully defined. The separate States are similarly cabinet within the four corners of the Constitution, and even the amendment of the Constitution is limited by the exception that no State shall, without its own consent, be deprived of its equal suffrage in the Senate. Therefore, in the theoretical sense, the United States has no sovereign organ for the Supreme Court judges, being overridden by Constitutional Amendment, are clearly only a penultimate court of reference.
Therefore, a particular historical experience has devised building a State from which the conception of sovereignty is absent. We may, of course, as certain German theorists h$e done, prize so highly the theory of sovereignty as to urge that a society Which does not possess it is not a State at all. But a political philosophy that rejects the title of the United States to Statehood is unlikely to apply to a world of realities.
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