The basis of legal sovereignty

Legal Sovereignty: The legal aspect of sovereignty is best examined by a statement of the form given to it by John Austin. In every legal analysis of the State, he argued, it is first of all necessary to discover in the given society that definite superior to which habitual obedience is rendered by the mass of men. That superior must not itself obey any higher authority. When we discover the authority which gives commands habitually obeyed, itself not receiving them, we have the sovereign power in the State. In an independent political community that sovereign is determinate and absolute. Its will is inimitable because, if it could not be constrained to act, it

would cease to be supreme, since it would then ,be subject to the constraining power. Its will is indivisible because, if power over certain functions or persons is absolutely and irrevocably entrusted to a given body, the sovereign then ceases to enjoy universal supremacy and therefore ceases by definition to be sovereign.

Its will is also clearly inalienable her the obvious reason that if a sovereign authority parts with its sovereignty it cannot of its own will resume it. Law, therefore, is simply the will of the sovereign. It is a command obliging the subject to do, or to refrain from doing, certain acts, failure to obey being visited by a penalty.

The sovereign itself is unlimited by positive law because it is its creator. Within the sphere of law, there is therefore, as Hobbes bluntly said, no such thing as an unjust command. The sovereign being unlimited, he has the legal right to will whatever he may happen to desire.

It may be useful to emphasis the threefold implication of this view. The State for Austin is a legal order in which there is a determinate authority acting as the ultimate source of power. Its authority, secondly, is unlimited. It may act unwisely, or dishonestly, or, in an ethical sens unjustly. For the purpose of legal theory the character its actions is unimportant. If they emanate from the authority competent to issue the particular command, they are the law. Command, thirdly, is of the essence of law. You must do certain things  you must not do other things. Failure to fulfill in either direction your obligation is punished by a penalty.

Within the narrow field that it covers, the Austinian view is a correct analysis of what flows from certain definite assumptions. If the lawyer regards sovereignty as important only as a form of command, he is obviously entitled to discuss it in that aspect. He may, further, assume that the force which lies at the disposal of the sovereign is unlimited, and that force need be considered only as it is applied by the courts of modern and relatively orderly States.

But these assumptions make it worthless as an explanation of the modern State for political purposes. There it is clear that the sovereign power is engaged in work which cannot at all ,reasonably be reduced to the form of a command. It is obvious, further, that no organization disposes in actual fact of unlimited force and we shall fail completely to understand the character of society, unless we seek to grasp exactly how the sovereign is compelled to will things desired by bodies in law inferior to itself.

On the historical side, of course, it was sufficiently shown by Sir Henry Maine that the Austinian theory is artificial to the point of absurdity. There is nothing genuinely comparable between the sovereignty of the King in Parliament, of an Eastern theocracy, and the people of ancient Athens. Nor, as we saw in the case of America, can a determinate sovereign body always be found. No sovereign has anywhere possessed unlimited power and the attempt to exert it has  always resulted in the establishment of safeguards.

Even the Sultan of Turkey in the height of his power was himself bound down by a code of traditional observance, obedience to which was practically compulsory upon him. In law there was no part,of the field of social fact he could not alter in practice he survived only by willing not to will those changes which might have proved him the sovereign of Austinian Jurisprudence.

To think, moreover, of law as simply a command is, even for the jurist, to strain definition to the verge of decency For there is a character of uniformity in law in which the element of command is, practically speaking, pushed out of sight. This is true, for instance, of all enabling statutes. When the Lord Chancellor is directed, if he so decide, to sell the presentation to benefices of which he has the advowson according to 26 and 27 Vic. c. I20, the statute is undoubtedly a law, but the element of command is very indirectly present.

The Lord Chancellor is not directed to do any thing unless he takes certain action, there is no obligation of any kind and if he acted contrary to the terms of the Act, its only sanction is that the courts would treat his sale of the advowson as void. When a Franchise Act conferred the Vote on women, it is an exceedingly circuitous way of explaining its nature to resolve it into terms of command.

No obligation is imposed, unless we regard the duty of the revising barrister to accept women as voters as an obligation. No law has probably aroused so much discussion as the Rule in Shelley’s case. That rule simply lays it down that when an analogous case occurs certain words shall be construed in a particular way.

The notion of command is contingent and indirect and the idea of penalty is, again save in the most circuitous way, notably absent. And it is very difficult to see how the exercise of delegated authority can be brought within the ambit of the Austinian definition. A royal warrant regulates the pensions and pay of the army. It is a command emanating from a qualified authority, but the Secretary of State for War cannot be compelled to obey it.

The most perfect example of the Austinian view is, of course, the position held by the King in Parliament. Any command which issues therefrom will, as Dicey pointed out in a classic analysis, be obeyed by enforcement through the courts. But everyone knows that to regard the King in Parliament as a sovereign body in the Austinian sense is absurd.

No Parliament would dare to disfranchise the Roman Catholics or to prohibit the existence of trade unions. If it made the attempt. it would cease to be a Parliament. That is to say that in practice legally unlimited power turns out to be power exercised under conditions fairly well known to each generation. There is probably a large degree of obedience from the sovereign Parliament to its constituents than there is the other way round a series of by elections, for instance, produce with amazing rapidity a change in the will and temper oi the sovereign.

Behind, that is, the legally omnipotent authority it is not very difficult to discern an electorate to whose opinions and desires increasing deference must be shown. That notion of an increasing deference is important. As the community becomes organized into associations with the end of bringing pressure to bear on government, the sovereign organ becomes, as a general process, little more than a machine for registering decisions arrived at elsewhere All the forms of an Austinian arrangement are preserved but it is upon their saving condition that their substance is surrendered.

It has been pointed out that the discovery of sovereignty In a federal State is, practically, an impossible adventure , but that difficulty is not confined to federal States. It is doubtful, for example, whether, in the  Austinian sense, Belgium may be termed a sovereign State at all The Constitution guarantees certain rights to every Belgian citizen.

He may exercise his religion as he thinks fit his property may not be taken without due compensation he has the night freely to assemble so long as he does not carry arms and does not meet in the open air. Now it is quite true that these and similar rights are all of them alterable by the Belgian Assembly. But before the Constitution can be altered the decision of one Assembly must be ratified by a new one rechosen by the electorate for that purpose.

There is no guarantee not merely that the new Chambers will in a sitting at which two-thirds of the members are present and two thirds of these vote for the change, ratify the constitutional alteration even more, there is no guarantee that the new Assembly will have the same complexion as the old and, it might, as a matter of theory, prove impossible to alter the Constitution. In that background either Belgium is not a sovereign State in its internal affairs (though it is a sovereign State for the purpose of international law ) or its sovereignty resides in the electorate. But any electorate is an indeterminate body which is legally bound to act through organs and agents and it is, according to Austin, the characteristic of sovereignty to be determinate and inimitable.

Difficulties such as these Professor Dicey attempted to meet by dividing the notion of sovereignty into two parts.:

The King in Parliament, he suggested, might be regarded as the legal, the electorate as the political, sovereign. But this is at once to imply that the notion of sovereignty is divisible, which is entirely contradictory of the original definition. Nor is the case improved by accepting Austin’s own suggestion that the sovereign in England is the electorate which exercises its powers through representatives. For, in the first place, the Crown and the House of Lords are not representative of the Commons in any sense to which precision can be attached, and when Austin goes on to argue that the sovereign electorate may delegate its powers either “subject to a trust or trusts ” or “ absolutely and unconditionally,” he fails to remember the logical meaning of a definition which implies the impossibility of alienation It the electorate merely created a trust, the latter would not be a sovereign body. If it created a sovereign body in the sense Austin gave that term, it would itself cease to be sovereign.

The maze, in fact, to which Austinianism ultimately leads, implies in the modern State the theory of popular sovereignty. It is well to urge at the outset that it is impossible to give precision to this view. The people cannot govern in the sense of acting continually as a unit tor the business of the modem State is far too complex to be conducted by perpetual referenda. If popular sovereignty simply means the paramountcy of public opinion, this is an abs traction of the most vicious kind. For we need to know when public opinion is public and when it is opinion. The elicitation of a popular will is always a delicate task to the result of which grave uncertainty attaches.

If we attempt to enshrine it within institutional forms, as when the American Constitution sought to make certain notions fundamental, we may end, not by enthroning public opinion, but what five out of nine judges consider to be reasonable, which is a very different thing. And if, as with the French Constitution of 1791, we say that the nation is the source of all powers which are to be exercised by the legislative body and the King, we are reducing popular sovereignty to a metaphor.

We should then encounter ton the one hand the argument of Rousseau that to part with paramount power is to betray it, and, on the other, the view of Burke and Mill that a restricted mandate is fatal to the moral character of the representative. Ali, in fact, that the theory of popular sovereignty seems to mean is that the interests which prevail must be the interests of the mass of men rather than of any special portion of the community and it is further an implicit insistence that the prevalence of this general interest is the criterion of political good. But this is to raise debate, not to settle it, for the real problem is not the announcement, but the realization, of the substance of this creed.

In the background of difficulties such as these it is impossible to make the legal theory of sovereignty valid for political philosophy. We are given the State and, from the fact of its existence, we can proceed to discuss what are its organs, and in what fashion they work for the purpose it has in view. Any attempt, as with Austin, to discover the sovereign is a difficult, and often an impossible, adventure. It postulates for the sovereign the possession of qualities which cannot in fact be exercised. It narrows down the meaning of vital terms to a content which, if maintained, would be fatal to the existence of the society. Political philosophy must, doubtless, consider law as an important factor in the life of the State.

But it must also hear ceaselessly in mind that the method of approach to the nature of law is, for itself, either akin to that suggested by Montesquieu, or else more likely to deceive than to assist. Law, fog the student of politics, is built upon the general social environment. It expresses what are held to be the necessary social relations of a State at some given period. The organ by which it is declared to be law is, for politics, incomparably less important than the forces which made that organ act in the particular way.

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