Preliminary View of Sovereignty in the State

After reading this article you will learn about the preliminary view of sovereignty in the State.

In this connexion we may attempt a preliminary account of the notion of sovereignty. There must exist in the State, as a legal association, a power of final legal adjustment of all legal issues which arise in its ambit.

The legal association will not be a single unit, and law will not be a unity, unless there is some­where one authority to which crucial differences ultimately come, and which gives, as the authority of last resort, the ulti­mate and final decision.

Different social groups may press different views of what is, or ought to be, law; it is even possible that different departments of the State may hold, and seek to enforce, different notions of what is legally right; there must be a final adjustment-centre.

That final adjustment-centre is the sovereign, the topmost rung of the ladder, the superanus or sovrano, the ‘authority of the last word’. Sovereignty is not the same as general State-authority, or puissance publique: it is the particular sort of State-authority which is the power, and the right, of ultimate decision.

In one sense sovereignty is unlimited—unlimited and illimi­table. There is no question arising in the legal association, and belonging to the sphere of its operation, which may not come up to the sovereign, and which will not be finally decided by the sovereign if it so comes up to the topmost rung.

The adjust­ment-centre must be competent to adjust every issue, without exception, which may stand in need of adjustment. But there are other considerations also to be noticed; and these will show us that sovereignty, if it is not limited to particular questions and definite objects (limited, that is to say, in regard to the things which it handles), is none the less limited and defined by its own nature and its own mode of action.

In the first place, and as regards its nature, sovereignty is the authority of the last word. Only questions of the last resort will therefore be brought to the sovereign. Much will be settled in the lower ranges and in the ordinary course of the action of general State-authority.

In the second place, and as regards its mode of action, the sovereign is a part and an organ of the legal association. Nothing will therefore come to the sovereign which does not belong to the nature and operation of the legal associa­tion, as such. Sovereignty moves within the circle of the legal association, and only within that circle; it decides upon ques­tions of a legal order, and only upon those questions.

Moving within that circle, and deciding upon those questions, sove­reignty will only make legal pronouncements, and it will make them according to regular rules of legal procedure. It is not a capricious power of doing anything in any way: it is a legal power of settling finally legal questions in a legal way.

Upon this it follows that sovereignty, confined by its nature to the sphere of the legal association, will not enter or seek to control the sphere of society, unless questions arise in that sphere (such as the interpretation of a trust deed or of the articles of association of some form of voluntary society) which invite a legal decision and are amenable to such a decision.

There are areas of social action which cannot be entered by law or brought under legal control. Sovereignty, being by its nature legal, does not im­pinge on these areas.

Who, then, or what, is the sovereign, in the sense of being the final adjustment-centre of the legal association?

(a) Ultimately, and in the very last resort, the sovereign is the constitution itself—the constitution which is the efficient and formal cause of the association; which brings it into being; which forms and defines the organs and methods of its operation, and may also form and define (if the constitution either contains or is accompanied by a ‘declaration of rights’) the purposes of its operation.

It may be objected to this view that the sovereign is a body of living persons, and not an impersonal scheme; and that ultimate sovereignty must accordingly be ascribed, not to the constitution, but to the constitution-making body behind it which can alter and amend its provisions.

But there is an answer to that objection. The impersonal scheme of the constitution is permanently present, day by day, and year by year; it acts con­tinuously, and without interruption, as the permanent control of the whole operation of the State.

The body of persons which can alter and amend the constitution (and which, by the way, can act only under the constitution, and in virtue of the con­stitution) is a body which acts only at moments of interruption, and therefore at rare intervals. The continuous control may more properly be termed sovereign than the occasional inter­ruption; and we may accordingly say that the constitution itself, in virtue of being such a control, is the ultimate sovereign.

(b) Secondarily, however, and subject to the ultimate sove­reignty of the constitution, we may say that the body which makes ordinary law, in the sense of issuing the day-to-day and the year-by-year rules of legal conduct, is the immediate sove­reign. That body may be differently composed in different political systems.

In the United States, for example, it is com­posed of Congress and President acting independently (though with mutual checks and reciprocal powers of overriding one another’s authority) on a system of co-ordination.

In the United Kingdom it is composed of Parliament and His Majesty’s Ministers acting interdependently, and with a mutual give and take (though here too there are mutual checks, and Parliament can dismiss the Ministers by an adverse vote as vice versa they can dismiss Parliament by advising His Majesty to use his power of dissolution), on a system which is one of connexion rather than coordination.

However composed, the body which makes the ordinary law of the land is the immediate sovereign, which issues final legal pronouncements on ordinary current questions to the extent and by the methods authorized under the constitution.

The immediate sovereign which makes the ordinary law in the United Kingdom is authorized by the con­stitution to a greater extent of action, and to action by easier and speedier methods, than the immediate sovereign which makes the ordinary law in the United States; but in either case the immediate sovereign is a body authorized by the constitu­tion, acting and able to act because it is so authorized.

On the argument which is here advanced the constitution is the ultimate sovereign, in virtue of being the permanent scheme, or standing expression, of what may be called the primary law of the political association; and the law- and rule-making body is the immediate sovereign, in virtue of being the constant source and perennially active fountain of what may be called the secondary law of the land.

Two difficulties confront the argu­ment, one of them largely formal, but the other more sub­stantial. The first and largely formal difficulty is that it would appear to be inconsistent to begin by ascribing ultimate sovereignty to the constitution rather than to the constitution- making body, and then to proceed to ascribe immediate sove­reignty to the law- and rule-making body rather than to the law.

Does not consistency demand either that both sovereigns should be impersonal systems, or that both should be personal bodies; either that the ultimate sovereign should be ‘the rule of the con­stitution’ and the immediate sovereign ‘the rule of law’, or that the ultimate sovereign should be the constitution making body and the immediate the law- and rule-making body?

We may answer that inconsistency is inherent in the nature of the case. The position of the primary law of the State is different from that of the secondary law. In the sphere of the primary law, which is in its nature permanent, it is the law itself, as a constant control, which matters more than the body of persons who occa­sionally vary and change the control.

In the sphere of secondary law, which is in its nature constantly changing with the change of circumstances and situations, it is the body of men constantly making the changes, and always at the helm, that matters most in the eyes of men and is accordingly felt and acknowledged to be the immediate sovereign.

The second and more substantial difficulty raises deeper con­siderations. It has been said, in the argument here advanced, that the law- and rule-making body acts and is able to act because it is authorized by the constitution.

But may it not also be said, and should it not rather be said, that the law- and rule­-making body acts, and is able to act, because it is authorized by the nation, or short of that by national opinion, or, simpler still, by the electorate and its vote?

And if that may be said, is it pos­sible to ascribe any immediate sovereignty to that body, and should not such sovereignty be rather ascribed either:

(1) To the nation, or alternatively

(2) To the thought of the nation, as expressed in the form of public opinion, or even

(3) To the action of the electorate (as the organ par excellence of the nation), in electing—and thereby, in some sense, also authorizing and even ‘instructing’—the body which makes the laws and issues the rules of legal conduct?

Three ideas are involved in the considerations which have just been raised—the idea of the sovereignty of the nation, or ‘national sovereignty’ (in the sense in which the term is current among French thinkers): the idea (which some English and American thinkers have cherished) of ‘the sovereignty of public opinion’; and the idea of ‘the sovereignty of the electorate’, which in practice, in a number of continental countries, has been often interpreted to mean the sovereignty of the party or combination of parties which has secured a majority of electoral votes.

The most serious of these three ideas—all akin to one another, but rivals as well as kin—is the idea of the sovereignty of public opinion. We may therefore begin with that idea: we may then proceed to the idea of the sovereignty of the electorate; and we may end by examining the idea of ‘national sovereignty’ in the French sense of that term.

(a) By the side of the State—so our argument has run— national Society continues to exist; to pursue a process of general thought in the form of national discussion; and to act for a variety of social purposes through a variety of social organs also engaged in a process of thought (they could not otherwise act) which pours itself into the general pool of the thought of the whole society.

By the exercise of this process of thought in the form of discussion national Society precipitates a body of opinion, which we may call indifferently by the name of national or public opinion. This body of opinion will affect and qualify the action of the law-making body.

Legally, that body still remains the immediate sovereign, and it therefore re­mains unlimited and illimitable, except by the constitution: actually, it has its ear to the ground of public opinion, and although it may do de jure whatever it wills to do within the limits of the constitution, it moves de facto within the limits (necessarily, by their nature, elastic) of an encompassing body of opinion precipitated by the nation.

Some have made this fact of the relation of public opinion to the law-making body the ground of a distinction between two kinds of sovereignty— political sovereignty, regarded as resident in public opinion, and legal sovereignty, regarded as resident in the law-making body.

But the difficulty of this distinction is that all sovereignty is essentially legal, and you cannot divide what is essentially legal into the legal and the other-than-legal. (It is a different matter to make a distinction between two grades of legal sove­reignty, the higher and ultimate grade of the sovereignty of the constitution, and the lower and immediate grade of the sove­reignty of the law-making body: the difference there is a differ­ence of hierarchy and degree in one and the same kind of sovereignty; and not a difference of two kinds.)

We shall do well to cling to the idea of the one immediate legal sovereignty of the law-making body, admitting (or rather contending), as we do so, that in operation and practice this sovereignty acts with regard and respect—though not in legal subjection or any legal relation—to the general body of national thought and the weight of its opinion.

That, however, is true not only of the law-making body and of the immediate legal sovereignty which it exercises, but also of the whole of government and of State- authority in all its range. Executive officials are particularly bound to act on the ground of law; and yet even they will be wise to remember in the course of their executive action that opinion must count as well as law. The law-making body is particularly able, in virtue of its representative character, and therefore particularly bound (though never legally bound), to remember and regard the existence of public opinion.

(b) The idea of the sovereignty of the electorate is one of a different order from that of the sovereignty of public opinion. The electorate is not the national society, however great its numbers may be; and the verdict it passes, at a given time, on the programmes and candidates submitted to its choice is some­thing different from the constant play of national thought.

The electorate is a legal organ of the legal association: it is part and parcel of the State. Normally, as its name suggests, it exists and acts for the single purpose of choosing the law-making body. It may, however, be authorized by the terms of the constitution to act on occasion for the further purpose of concurring in the passage of law, through the institution of the referendum: it may even be authorized by the constitution to act for the still further purpose of joining, upon occasion, in the first motion of law, through the institution of the initiative.

In either of these events, or both, the law-making body is not the legislature only, but the legislature and the electorate acting in conjunction; or rather it is the latter on the occasions when the institutions of the initiative and the referendum are employed, and it is the former, and only the former, on the occasions when they are not. (The oscillation is somewhat perplexing; and that is one of the reasons why the referendum and the initiative have never attained a general vogue.)

But it is one thing to hold that the electorate may, in certain circumstances—that is to say, on some particular occasion—become a part of the immediate sovereign: it is another thing to hold that the electorate should, in all circumstances, be regarded as the whole of the immediate sove­reign. To profess a belief in the sovereignty of the electorate is to subscribe to this latter view.

But it is difficult, and indeed impossible, to subscribe to the view that the electorate, in and by itself, can ever be regarded as the immediate sovereign. There are, indeed, arguments which may be advanced in support of the view. One of them is the argument that the electorate, merely by the fact, and in virtue of the act, of electing the law-making body is super-sovereign over that body.

In itself that argument carries no weight: the electorate which chooses the immediate sovereign does not become an authority over it by virtue of its choice, any more than the electors who choose a professor become an authority over him by virtue of their choice. Another argument may seem to carry more weight.

This is the argument that the electorate not only elects the law-making body, but also ‘instructs’ it at the time of election, and that therefore the body so instructed must act, during its term of office, according to its instructions. There is a sense in which the result of a general election is a sort of general instruction to the law making body.

But this general instruction is, at the most, a general expectation that the majority of the persons elected will seek to carry into effect the programme on which they have been elected—subject, how­ever, to the march of events and new conjunctures of circum­stance, and subject, above all, to free discussion with the minority (who have also been elected and have also their rights and functions) and to the achievement of some compromise based upon such discussion.

Such a general expectation, so qualified and so circumscribed, imposes no legal obligation upon the persons elected: it does not make the electorate a legal ad­justment-centre: it does not diminish—it even increases—the duty of the body of elected persons to act as such a centre, and to make the actual adjustments to the best of their ability and by the use of their discretion.

There is a further remark to be added. The idea of the sove­reignty of the electorate, when we pursue it to its inmost recesses, is really a cover or outwork for the idea of the sovereignty of party. The name of the electorate may grace the measure, but party is the real flame.

The majority party pleads the verdict and instruction of the electorate—that is to say, of the majority of the electorate, for there is also a minority which has also given a verdict and instruction—in order to cover its partisan claim to make adjustments in its own sense and on its own motion.

Party has a great and legitimate function in a democratic sys­tem of government; the function of formulating choices for the electorate, the function of arraying sides in the legislature, the function of cementing the Cabinet (and also the anti-cabinet, or Leaders of the Opposition) in the sympathy of a common loyalty. But if it is ubiquitous, it is never sovereign; and if it contributes to adjustments, it is not their maker.

The hidden notion of the sovereignty of party is something more dangerous than the open idea of the sovereignty of the electorate. The electorate is intermittent: party is always there. The electorate is a legal organ, acting in public and by methods publicly pre­scribed. Party is partly public, but it is partly also private; it is partly a matter of the State, but it is partly also a matter of Society and voluntary social arrangements.

The sovereignty of party, however it might be veiled under the name of the elec­torate, would be a sovereignty always acting but often acting obscurely and sometimes deviously. There is all the more reason for refusing to accept the idea of the sovereignty of the electorate when we reflect on the nature of the actual sovereign which that idea might be used to veil.

(c) The idea of the sovereignty of the nation (souverainete nationale) is an idea which has had a large vogue in France. It is already indicated in one of the articles of the Declaration of the Rights of Men and Citizens of the year 1791: ‘le principe de toute souverainete reside essentiellement dans la nation.’ If, however, we analyse the term ‘nation’, in so far as it bears on the idea of sovereignty, we shall see that it must mean one of two things.

It may mean, in the first place, the whole population of a national territory, considered as the source of public opinion; and in that case what has already been said of the idea of the sovereignty of public opinion must also be said of the idea of national sovereignty.

It may mean, in the second place, that part of the population which constitutes the electorate; and in that case what has already been said of the sovereignty of the electorate must also be said of the idea of national sovereignty.

We may therefore conclude that immediate sovereignty can­not be ascribed to the nation, any more than it can be ascribed to the electorate or to public opinion, but must be ascribed to the law-making body, and to that body only. It is that body, and only that body, which makes the actual adjustments of questions under debate; and it is the adjustments made by that body, and only those adjustments, which are binding and obligatory on the members of the State.

It is true that the sovereignty of the law-making body is limited: indeed it is doubly limited— legally limited, by the need of keeping within the constitution and acting under the constitution; practically limited, by the need of keeping in harmony with the opinion of national society and acting in conformity with its general trend.

The fact that the constitution is a legal limit on the immediate sovereign makes the constitution super-sovereign; the final sovereign; the ultimate sovereign. But the fact that the public opinion of Society is a practical limit on the immediate sovereignty of the law-making body does not make that opinion in any sense sovereign. The term sovereign belongs to the legal sphere, and to that sphere only.

The constitution belongs to that sphere: public opinion does not. To vest sovereignty in the public opinion of national Society is both illogical and dangerous. It is illogical, because sovereignty does not belong to the social sphere in which opinion moves, but only to the legal sphere in which the State moves and has its being.

Again it is dangerous, for the simple reason that it magnifies unduly the nature and scope of sovereignty. If we say that public opinion, and the nation which forms that opinion, is sovereign, we tie ourselves to an undefined and unlimited sovereign, which can do what it will and will do what it can.

The pure legal sovereignty of a law-making body which confines itself to adjusting legal issues, by legal methods, in legal subjection to the constitution, and also, at the same time, in some degree of practical subjection to the trend of national opinion—such sovereignty, so confined, is a definite and limited thing.

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