N
EARLY HALF a century ago Mr. James C. Carter,
one of the leaders of the New York bar, in his book on
Law, Its Origin, Growth and Function,
made the assertion that "the theory of Austin
has received, both in England and America, a
wider acceptance and adoption among juridical
writers than any other." Few, I think, would
question the accuracy of this statement after a
reading of the works of such eminent and
influential authors as Sir George Cornewall
Lewis, Sir Henry Maine, Professors Dicey and
Holland, and more recently the great legal
history of Sir William Holdsworth—
Austinians all; and I am inclined to believe
that Mr. Carter’s statement remains as true of
English and American political thinking today as
it was when he made it.
And yet, no less an authority than F. W.
Maitland, the greatest master of them all,
ventured to say of John Austin that "though he
was at times an acute dissector of confused
thought, he was too ignorant of the English, the
Roman and every other system of law to make any
considerable addition to the sum of knowledge.
j. a. = o."
Which shall we believe? We must accept one view
or the other if we admit the inevitability of
human government, as everyone must do except the
few lone survivors of the extinct school of
philosophical anarchists; and a decision was
never more important than today, when we see one
great nation rejecting the international
inspection of atomic materials because this
involves an alleged infraction of that nation’s
sovereignty; and some of us still have the
painful memory of a time when a few influential
leaders in another country wrecked the League of
Nations on a similar pretext. Surely the nature
of sovereignty is a subject of far more than
mere academic importance, and we should be clear
as to our definition of it and the grounds on
Which we base it.
The historic differences of opinion about
sovereignty have usually concerned its real
essence, whether a matter of law or of fact; the
possibility or impossibility of limits to its
exercise; or its proper seat, whether a state, a
people, a king, a representative assembly, or a
collegiate organ such as the English one
composed of both king and parliament.
The solution we adopt of such important
practical questions as these will in large part
be due to our acceptance or nonacceptance of
several fundamental distinctions.
Logically, the first of these is probably the
question whether we should designate the supreme
judicial organ or the supreme legislature as the
sovereign body in any state. I take it that the
modern answer to this question is clear and
practically unanimous. It is unquestionably the
legislative organ, for it can always override
any decision of the courts. Sovereignty is now
invariably thought of as legislative
sovereignty. But it has not always been so
considered. In fact it was never so until men
finally realized that medieval promulgation had
actually been superseded by modern legislation,
and that realization came surprisingly late. In
1576 Bodin claimed, and probably with justice,
that he was the first to see it clearly, and
even he had failed to note it in his
Methodus, published only ten years
before.
All his great contemporaries, I believe, would
have agreed with the Chancellor Michel de
Hôpital that the chief mark of sovereignty
must always be "de judger et faire
justice," as medieval men had thought.
However, when the new fact of legislation was
once grasped~ acceptance of Bodin’s views soon
became well-nigh universal, and this was as true
of England as of the Continent. In the period
from i6oO to the outbreak of civil war there was
no political writer cited in England more often
or more favorably than Jean Bodin. It is hardly
too much to say that his conception of the
nature of the state and of the supreme power
within it had become the normal thought of
Englishmen generally, and when objections were
occasionally made to it, I find them more
frequently on the Continent than in England.
In the conception of the state just referred to,
Bodin made another contribution to political
thought scarcely less significant than his
recognition of the fact of legislation. He
defined a "republic" as "a government," and in
so doing repudiated the view held so generally
by modern German theorists, that a government
can never be more than a mere "Träger der
Staatsgewalt," while the real sovereignty
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always resides in a kind of mystical body which
we call the State.
"We shall not fear to think of the State as a
unity, a personality, a sovereign— a
sovereign in whose presence the visible ruler
can aspire to no higher title than that of
sovereign organ," says Jethro Brown in his book
The Austinian Theory of Law. I do fear
to think thus of the state, particularly in view
of the recent history of Germany.
This invariable ascription by Bodin of
sovereignty to a "visible ruler, if justified,
has the further effect of refuting such modern
statements, for example, as Kern’s, that the
sovereignty of the Middle Ages was in reality
the sovereignty not of the ruler but of the law
itself. Then as now, it is true, men did
recognize that law should always direct the
sovereign in his government, and also that it
may even set bounds to his authority; but actual
government always necessarily implies will, and
will is the function of men and only of men.
Modern political developments have made it
increasingly difficult for us to appreciate the
true difference between medieval limitation of
government and the direct control of it.
Theories of sovereignty were then ill abeyance
largely because feudal decentralization made it
difficult to find anywhere a supremacy of any
kind.
Bodin’s assertion that the sovereign in any
state must always be a government has a further
bearing upon modern political thought: it is a
virtual denial of the view widely held that,
whatever the governments the sovereignty must
always remain in the people— the theory of
"popular sovereignty." The legislative body,
according to this theory, is the people,
and the people are always the true sovereign.
But the legislature obviously is not the people.
The people are legally bound to obey the
legislature’s commands until these are repealed
by the legislature itself, no matter how
oppressive or unpopular they may be. The people
may of course force the repeal of such unpopular
laws in time, but until the legislature sees fit
to act, the people will disobey them at their
peril. Popular sovereignty is, in fact, possible
only in a pure democracy without representative
institutions— the only form of democracy
recognized by Rousseau as legitimate— but,
as usually employed, the phrase "popular
sovereignty" contains a contradiction in terms;
for, whether we like it or not, in choosing a
legislature we are choosing a master, and
because we choose it, it is no less a master
than a monarch with hereditary title.
It is this theory of popular sovereignty, no
doubt, which leads some to say that in the
United States the true sovereignty today
consists of the shifting and temporary
majorities that at any given time are able to
obtain an amendment to the Federal Constitution.
But what a Sovereign results! From 1804 to 1865
not a single such amendment
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was ever adopted in the United States. This is a
sleeping sovereign indeed. The upholders of such
a theory as this are making the fatal mistake of
confusing two very different things, the
constituent action of a people in choosing a
frame of government, and the governmental
activity of the legislative organ created by the
constitution so chosen.
Possibly it was Bodin’s partial retention of
medieval ideas which accounts for certain
obvious limitations or defects in his theory
when applied to modern states, some of which
were noted within a generation or two of his own
time. For one thing, his rigid doctrine of the
indivisibility of sovereignty led him to deny
sovereign authority to all mixed governments
such as the English king in Parliament; a
limitation condemned as early as 1606 by Henning
Arnisaeus of Halberstadt in his Doctrina
Politica, and, as I believe, completely
refuted later by Philip Hunton. Hunton’s little
tract on monarchy, first published in 1643, has
received scant justice at the hands of modern
historians of political thought, but it is hard
to escape his logic when he points out that any
denial of sovereignty to such a corporate or
collegiate body as the English king in
Parliament is likewise a denial of the
possibility of any corporate action of any kind
among men and must apply as properly to every
aristocracy or democracy in the world as to a
mixed monarchy like England’s. Filmer, it is
true, did so apply it, and logically reduced all
legitimate governments to the rule of one single
man; but Bodin, on the other hand, like most
political theorists of his time, had fully
accepted democracy and aristocracy, as well as
monarchy, among the possible forms of legitimate
government.
Another important criticism of Bodin’s theory of
the state occurs in the brilliant treatise on
Seignories of Charles Loyseau, which
appeared in i6o8. Bodin had set forth in his
République the view that "he alone is
sovereign absolutely who holds nothing of
another." Loyseau, on the other hand, contends
that the existence or non-existence of a
sovereign authority does not depend thus upon
the bare fact of vassalage, but upon the nature
of the fief; and that a prince even though the
feudatory of another, does not thereby cease to
be a sovereign, provided his person is not
subject to another’s jurisdiction and he himself
retains the absolute authority over his own
subjects. He holds, in short, that "the
sovereignty is measured by the seigneurie
and not by the Seigneur," thus apparently
making internal relations in a state the chief
criterion of sovereignty and by implication
excluding most of those we now include under our
phrase "external sovereignty."
It was perhaps natural that such a question
should still be discussed
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feudal terms in 1576 or 1608, while we
habitually think of it in of terms of the
national state. Nevertheless, we still have with
us the pine problems and there is probably no
era in the past when the Interrelation of states
was more closely tied to the theories of
sovereignty held within them than at the present
day. The outcome has not always been a happy
one, and I have often wondered whether it might
not make for greater clearness if we could use
entirely different terms for the internal and
the external aspects of government and confine
our word "sovereignty" to the former alone, as
Loyseau did. This might seem an unimportant and
wholly academic question but it is on just such
questions that differences have arisen in the
past that in some cases have led to actual war.
The effect of external restrictions created by
treaty upon such an internal question as the
definition of citizenship, in dispute between
England and the South African Republic, must
certainly be reckoned among the causes of the
Boer War. If the proposed international Bill of
Rights is ever adopted, we may expect many more
such differences in the future.
Among the distinctions we must draw if we would
understand the nature of sovereignty, its
history, and its proper place in our thoughts
about the state, I come in the last place to the
distinction most fundamental of all, the one
between a supremacy based upon law and that
resulting from mere power.
That this is a valid and an important
distinction, English history in the last few
centuries is the abundant proof. If we were to
look for the power, during a part of the
sixteenth century at least, it would certainly
be with the king; for a part of the eighteenth
it was in the hands of an aristocracy— Or,
as some might prefer to say, an oligarchy; in
the twentieth, as a result of the extension of
the franchise, it belongs to the people. Yet,
during this whole period, thus marked by these
enormous shifts of power, the supreme authority
to make law— primum ac praecipuum caput
majestatis, as Bodin had termed it— was
never changed: it remained throughout solely in
the king in Parliament. These facts led Lord
Bryce to make a distinction between "legal
sovereignty" and what he termed "political
sovereignty." The former of these is certainly
sovereignty, the latter I should prefer to call
mere power, rather than sovereignty of any sort.
The important fact in this connection, however,
is that the former is truly legal, not merely
factual; it is based upon the ancient law, not
upon the temporary accident of power. Here is
the crux of the whole controversy between Austin
and his opponents. It is also the main point of
difference between Bodin and Hobbes.
The last of these statements, I know, has often
been questioned.
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Hobbes and Bodin are usually classed together
among the advocates of absolutism. As Sir
William Holdsworth said in 1912, "We do not
think that Coke had fully grasped the doctrine
of sovereignty as taught by Bodin and, after his
day, by Hobbes."
If such an identification of the sovereignty of
Hobbes and of Bodin is unwarranted, as I think
it is, the mistake results from no
misunderstanding of the theories of Hobbes—
his absolutism is clear enough. It comes
entirely from a failure to note certain aspects
of Bodin’s theory of sovereign authority.
It is true that Bodin’s sovereign is legibus
solutus, but it is not always sufficiently
noted that in France such laws of which he is
free do not include the law of God, the law of
nature, or the fundamental laws of the monarchy;
by these the king is bound. Unfortunately,
however, those of which he is free do
include the customary law of the land, whose
origin Bodin and most of his contemporaries
attribute to earlier kings and not to the
people. Unlike the common law of England, always
defended as the people’s "birthright" never to
be altered without their consent in Parliament,
the French coutume had come by Bodin’s
day to be regarded as a royal and not a people’s
law, the work of earlier monarchs and therefore
a law that a reigning king" might change without
consulting his Estates. Bodin, however, was more
liberal than most of his contemporaries on one
important point: he held that the right to
property was not a customary but a natural
right, protected by the unalterable law of
nature and there fore beyond any king’s
authority to change.
Within the half century following the death of
Bodin his feeble safeguard of natural right had
been utterly swept away by the rising tide of
absolutism in France, and by 1632 LeBret could
assert with truth that the king by virtue of his
absolute authority could levy tailles and
subsidies upon his people "even without their
consent." If we might judge from such historical
results alone, we could scarcely deny that the
outcome of Bodin’s sovereignty had fully
demonstrated its despotic tendency. His fatal
admission that kings and not the people were the
authors of the customary law of the land must
probably be considered the chief of the
intellectual roots of French absolutism. No
wonder then that so many modern authorities With
this in mind should see little to choose between
the theories of Jean Bodin and the undoubted
absolutism of the Leviathan.
And yet in his own day Bodin had protested with
heat against this very charge, and his
courageous defense of private property in the
Estates of 1576 is proof of his sincerity.
Notwithstanding the serious defects in his
theory and their disastrous results, I cannot
believe that
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the conception of the state and of the supreme
authority within it presented in Bodin’s
Republique is the one "taught. . . after
his day by Hobbes." In the former the
sovereign’s authority is founded in and bounded
by law; in the latter, it follows automatically
upon
0cre actual mastery. These two conceptions are
in reality poles apart in essence, whatever may
have been their common historical outcome. "It
is authority, and not reason, which makes a
law," Hobbes declared in his Dialogue of the
Common Laws of England. Bodin, I believe,
could never have made such a statement.
In his Behemoth, Hobbes also expresses
his contempt for those who "dreamt of a mixed
power of the King and the two Houses. That it
was a divided power, in which there could be no
peace was above their understanding."
The whole of English constitutional history from
1642 to the present day is proof of the accuracy
of this statement if restricted thus to mere
power; but when stretched to cover the
sovereignty of the king in Parliament, it
involves the denial of a legal doctrine held
more or less consciously from medieval times to
the present, a doctrine which on the whole had
always been true to fact in England save in the
few years of the interregnum of the seventeenth
century. It was the anomalous situation in that
short interval that constituted the basis for
the political speculations of Hobbes. For the
brief period of the Commonwealth and
Protectorate his theory of sovereignty was
accurate enough, but for no other part of
English history since the Conquest.
In this connection I venture to repeat some
statements made a good many years ago. If the
Stuarts had been content with the moderate
prerogative of Bodin or Eliot or Hale, instead
of the extreme doctrines of Filmer, there would
have been need for neither civil war nor
revolution. Before 1642 it was nothing more than
the tempered constitutional monarchy of Hale or
Eliot for which the parliamentary leaders were
struggling. It was only after hostilities had
begun that the constitution was forgotten and
actual mastery, not legal right, became the end
to be achieved at any cost, and when the wars
were over it was this actual mastery and not
constitutional right which actually triumphed.
It was therefore actual might, not
Constitutional right, which the Commonwealth and
the Protectorate established; it was actual
might, not constitutional right, on which
Hobbes, with these facts before him, based the
sovereignty in any state whatever. Thus, for
Hobbes, Filmer’s arbitrary royal power had come
to be a power vested in either an assembly or a
king, but none the less arbitrary for that. Hale
or Eliot would have repudiated
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all arbitrary government whatsoever, whether of
a king or a parliament; Filmer had declared that
any government in England must be both arbitrary
and royal; for Hobbes it must be arbitrary but
not necessarily royal; for many Whigs a century
later it must be arbitrary but cannot be merely
royal. Thus it seems that it is to the civil
wars of the seventeenth century and not to the
precedents of the original English constitution
that we are indebted for the peculiar doctrine
of political supremacy of Thomas Hobbes, a
doctrine which enthrones might in place of right
and can brook no limits to the arbitrary
authority of the sovereign. It is not without
significance that the great figure on the
frontispiece of the Leviathan, armed with
all the symbols of authority, should have a face
not unlike the face of Oliver, but in no way
resembling that of the late king. And it may not
have been mere ambition that led Cromwell
himself to toy with the idea of assuming the
crown when so urged, in the first draft of the
Humble Petition and Advice. If he had
done so, some of his judges at least would have
felt more secure than they did in their
administration of the law of the land.
John Austin was no doubt thinking primarily of
parliamentary government when he wrote his
Province of Jurisprudence Determined; but
it is hard indeed to see how he could possibly
reconcile the existence of such a government,
founded in law and sanctioned by centuries of
history, with the statement in his book that
whenever in any society a determinate person (or
persons) habitually receives the obedience of
"the bulk" of the members of that society, that
person (or persons) must be considered to be the
sovereign in that society. For in such a
statement there is no question of law or Of
right. It is the mere physical fact of mastery,
the actual existence and continuance of
obedience, whether induced by consent or fear of
force, which clothes those who happen to obtain
it, no matter ho~ or why they do obtain it, with
the supreme authority in any state.
In what essential feature then, it might be
asked, does a sovereignty such as this differ
from the teachings of Thomas Hobbes; in whit
important respect, if any, does it resemble the
traditional author" of the English king in
Parliament?
It is no doubt true that, in the strictness of
English law, the principle is unquestionable
that the Parliament is not only "absolute but
that it may lawfully be arbitrary; but to admit
this is not to say that this unbounded
authority results from the "habitual" obedience
of the English people: it comes from the
immemorial law of the land.
It must also be conceded that at times in the
past some of Parliament actions have been truly
arbitrary; and Burke was probably