After reading this article you will learn about the problem of sovereignty.
When we survey the whole process which begins with the formation of social thought and ends in its translation into terms of political action, we find ourselves confronted by a problem which has already arisen in other connexions, but which arises more particularly here, in connexion with the theme of political obligation. This is the problem of sovereignty.
Where, and at what point of the process, is the last word said to the citizen— the word of words which carries a final and conclusive authority —about what he is bound and obliged to do as a member of the State? And who, or what, says that last word? We may begin our answer by seeking to recapitulate the preliminary conclusions.
At the first of these stages. when our view was still confined within the limits and the four walls of the legal association, and did not, as yet, embrace the wide area of Society and social thought beyond those limits and outside those walls, we attempted a preliminary view of sovereignty in purely political terms.
On that view sovereignty was regarded as being, in its nature, the power of final adjustment within the association; the authority of last resort in the State, which said the last word within the State. Sovereignty upon this view, is not public power, or State-authority, as a whole, in the whole of its range: it is the summit, and not the mountain; it is the topmost rung of public power or State-authority, where the final word is pronounced on legal issues which get so far as to rise to that rung.
If that is the nature of sovereignty, conceived in purely political terms and viewed purely as an attribute of the State, the place of its residence must be regarded as being the summit of the structure of public power and State-authority.
That summit, at its highest peak, is the constitution itself, and the constitution is thus the ultimate or normative sovereign; but under the constitution, and subject to the constitution, we may ascribe the possession of immediate or active sovereignty to the legislature, and we may accordingly say that the legislature is the immediate sovereign when, and in so far as, it acts by the norm of the constitution.
At a second stage of the argument, though our view was still confined within the limits of the State, we made a fresh step, and added a new consideration, which affected further our view of the nature of the immediate sovereignty of the lawmaking body.
The gist of this new consideration was that ‘lawmaking’, as it is called, is not the creating of law in the sense of issuing a command to the community, in the imperative mood, about what shall or shall not henceforth be done, but is rather the declaring of law in the sense of issuing a statement to the community, in the indicative mood, about what already is the standard of will and action accepted by common conviction.
It follows from this view that the immediate sovereignty of the legislature, acting within the limits and the four walls of the State, is not only subject to the ultimate normative sovereignty of the constitution: it is also subject, in itself and by its own very nature, to the limit imposed by the fact that it is an organ for the expression and declaration of common conviction.
This common conviction, resident in the members of the legal association, is a conviction about the idea of justice: a conviction about the dictates or deductions which issue from that idea: a conviction that justice is the value of values, and that standards of will and action flow from this supreme value.
We may accordingly say that the immediate sovereignty of the lawmaking body is inherently and by its own nature subject to common conviction, and thereby to the content of common conviction, and thereby to the idea of justice, and thereby to the standards of common life that issue from that idea.
Finally, at a third stage of the argument, we went still farther, and going beyond the limits and the four walls of the State we took into our view the area of Society and social thought which lies outside those limits. Here we arrived at the conclusion that the idea of justice had its ultimate origin in Society, and originally sprang from a process of social thought proceeding by way of social discussion.
We thus advanced beyond the conclusion of the previous argument. We moved from the view that a common conviction about the dictates of justice, resident in and entertained by the members of the legal association of the State, was the basis of law and the inspiration of the law-making body; and we rose to the higher and broader view that social thought about the nature of a just order of human relations, moving in the area of Society and developed by social discussion, was the basis of the existence and the inspiration of the activity of the whole legal association.
We thus gave justice, as it were, a new bodily habitation, by arguing that it resided not only in the common conviction of the legal association as such, but also, over and above that, in the social thought of national Society as such, standing behind and rising above the walls of the legal association.
We also gave this justice, with its new bodily habitation, a new and final authority as the ultimate sovereign of sovereigns: we made it the extra-legal or supra-legal sovereign, sovereign even over the constitution, which is an instrument it has created, and sovereign therefore over the legislature, which is an instrument of that instrument.
We may now seek to draw together the conclusions attained at these different stages. When they are thus drawn together, they may be enunciated in two propositions.
(a) Prior in order of thought to the State and to the form (or forms) of its sovereignty, though the State in its early condition of a power-organization may itself have been prior in order of time, there is the idea of justice and of the sovereignty of justice, resident in the social thought of the members of a national society about the right order of their relations.
There are those who would seek to separate the idea thus resident in thought from the thought in which it resides; who would argue that the idea of justice is one matter, and the seat of its residence another; and who, having made that distinction, would proceed to contend that it is social thought, under the name and style of ‘the general will’, which ought to be deemed to be sovereign, rather than the idea of justice.
But we cannot make a distinction between the sovereignty of the idea of justice and the sovereignty of social thought. The two are inseparable. There is no justice but social thinking makes it so; and conversely there is no social thinking about the order of human relations but issues in the idea of justice.
We may therefore speak of the supreme sovereignty of a socially created idea of justice, which is brought into being by social thought and the process of social discussion. Upon that basis we may make an admission, which is also, at the same time, a contention. There was, after all, a great measure of truth in the ideas of the votaries of natural law.
When they urged the cause of the supreme sovereignty of natural law, and even went to the length of making null and void all laws and acts of government which were contrary to such law, they were groping after the idea of the sovereignty of the idea of justice. The one thing they failed to grasp was the fact of the social creation of the sovereign they sought to enthrone.
(b) When the State has emerged into action as a legal association, for the purpose of realizing the idea of justice by translating it into a system of declared and enforced law, it is, in the last resort, subject to the supreme sovereignty of the idea of justice by which it was created and by which it is sustained. But considered in itself and by itself it develops within its own limits two other sovereigns or forms of sovereignty.
They are both of them legal sovereigns or forms of sovereignty; and as such they are both distinct, and different in kind, from the social sovereignty, as it may be called, of the idea of justice. The first of these legal forms of sovereignty is the ultimate sovereignty of the constitution which is the creative act, as the idea of justice is the creative spirit, that brings the State into being and controls its subsequent action.
The second legal form of sovereignty is the immediate sovereignty of the law-making body; the body of persons, legally subject to the constitution, and inherently limited by its own nature as an organ appointed for the purpose of declaring common conviction, which is concerned with the issue, and has a general control of the enforcement, of the rules of positive law.
Within the State, and looking only at the State, we see only these two sovereigns. If we go beyond the State, and take into account the play of Society and social thought outside the State, we see a third sovereign beyond these two; a sovereign idea of justice, moving and finding expression in the play of social thought, which is not a sovereign in any legal sense, and yet is the standard and final control of all legal action and legal sovereignty.
It is tempting to reduce the three sovereigns to one, and instead of being content with a hierarchy to seek a single and simple unity. It is particularly tempting to seek such unity in a personal source of will, whether the source be a single person or someone body of persons. We are naturally apt to think in terms of a Sovereign Will or a Sovereign Sanhedrim of Wills.
But we cannot thus deify will, whosesoever the will may be; whether the will of a decreeing person or a body of such persons, on the ground that they are creators of the rules by which we live, or the will of the People itself, on the ground that it is the super-creator which limits, and may even control, the decreeing person or body.
If we make will final, we really make force final, for a will which prevails just because it is will, without regard to the object it wills or the standard by which it wills, is a force.
We may allow, indeed, that a law which has issued from the will and action of a law-making body, acting as the organ of common conviction, is legally valid and finally conclusive within the area of the State, provided that it is duly enacted according to the rules of the constitution which are the final arbiter of legal validity; and in that sense, and to that extent, we may admit the sovereignty of legislative will and action.
But we must also allow that a law which has issued from that source, even if it possesses legal validity and imposes legal obligation, will not possess moral value or impose moral obligation unless it squares with the idea of justice, as formed in and expressed by the movement of social thought. That still leaves us with a hierarchy rather than the simple unity of a single personal factor.
In the sphere of social and political theory, which is bound to embrace both Society and the State, there is no one and only sovereignty of which we can say ‘Its will is our peace’. The peace of acquiescence in such a will is denied us by our own nature.