Chapter VI: Modern Theories of Sovereignty

The sixteenth century brought with it four momentous changes, any one of which would have alone been sufficient to shake the existing fabric of thought and belief:—

The Emperor died out as universal Sovereign, and became thenceforth little more than a German monarch, with a titular precedence over other princes.

The Pope was gravely wounded by a revolt which ended by withdrawing half Europe from his sway.

The feudal structure of society began to crumble away, and therewith the power of the Crown in each country grew.

A new spirit of inquiry, sceptical in its tendencies and no longer deferential to authority, sprang up in Western and Southern Europe.

Thus that traditional doctrine regarding the basis of authority which had been sufficient for the Middle Ages faded into dimness. Morals began to be separated from theology, and the outlines of political science to emerge from feudal law. Men asked what was the basis of a king’s claim to be obeyed. Did Might give Right? or did Right give Might? What was Right itself? Were there any, and if so, what, moral or religious limitations on the powers of a monarch? and if so, did his transgression of these limitations justify rebellion against him? These were not purely speculative questions, because the wars of religion, which brought bodies of subjects into collision with monarchs of a faith opposed to their own, and the Pope into collision with Protestant monarchs, raised issues of principle that were momentous, not merely because they troubled conscientious minds, but also because men felt the need of guidance and sought for it in some belief which could stimulate and inspire their action. Kings were everywhere extending their functions and assuming, more than ever before, the work of legislators, while at the same time subjects found that new reasons had arisen for resisting kings. The old theory which deduced the rights of kings from the grant of authority divinely made to Peter and to Caesar was outworn. A new explanation of the nature of political society was needed; and from that time onward new theories of State power began at intervals to appear.

The particular form taken by the problems which these theories attempted to solve was determined by the conditions of a time in which the coherence of nations and states was threatened on the one hand by religious discord, and on the other by the claims of local magnates as against the Crown. Hence the aim of thinkers was to discover something which would secure the unity of the State. They asked, What is it that holds the State together? Must there not be some supreme Force to overcome the various forces that in each State make for division? Where is that Force to be found? Whence comes its title to rule? In what persons should it be vested? Can it be, or ought it to be, checked? These thinkers did not approach such questions by an induction from the facts of actual states, as we should do, but were guided partly by the dogmas of law and theology which the Middle Ages had bequeathed to them, partly by abstract theories which their advocacy of kingly authority, or papal claims, or popular rights, suggested. And this explains why the Roman Catholic writers, who might have been expected to maintain the absolute sovereignty of kings for the purpose of crushing out heresy, are often found defending the rights of the people, and arguing for the right to revolt against and depose a heretical monarch, such as Henry the Eighth, or Elizabeth, who had fallen away from obedience to that ecclesiastical authority whose rights came from the grant to St. Peter.

The first theory, or at least the first which exerted wide influence, was that of Bodin, a French jurist, whose book, in its earliest form, was published in 1576. In his view Sovereignty or _Maiestas_ is the highest power in a State, which is subject to no laws, but is itself the maker and master of them. It may reside either in one person, which is the best and normal form, or in a number of persons. But in either case it is above all law, incapable of limitation or division, and having an absolute claim to the obedience of all its subjects, irrespective of the justice or policy of its acts. Hence Bodin rejects all so-called limited monarchies and restricted governments; and while he calls the Romano-Germanic Empire of his day not a monarchy but an aristocracy, he finds in the French monarchy a pure autocracy of the proper type. Nevertheless even Bodin admits that, in some sort of vague way, the Sovereign is subject to the Law of God and the Law of Nature, and conceives that he is therefore bound to perform any contracts he may make, and to respect the rights of property and of personal freedom.

The boldest and most logically complete counter theory to that of Bodin came from a younger contemporary of his, the Calvinist Iohannes Althusius (John Althus or Althaus), who was born in 1557, and died in 1638. Calvin himself, and most theologians of his school, had returned to the ancient theocratic view that civil power is derived from God, dwelling especially on Romans viii. 1. Althusius, however, bases the government of the State on a contract between the people and the ruler, and proceeds to assert the rights of the former, as the ultimate source of all power and the only true and permanent depositary of sovereignty, to depose the ruler and resume the delegated power when he has violated his duties and transgressed the measure of authority granted to him[17].

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Footnote 17:

A full and instructive account of this writer’s theories is contained
in the admirable book of Professor Otto Gierke, _Johannes Althusius
und die Entwickelung der naturrechtlichen Staatstheorien_, which is a
repertory of information regarding mediaeval and post-mediaeval
doctrines of the State.

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Nearly a century later than Bodin a scheme, similar to his, but more thorough-going was propounded by Thomas Hobbes of Malmesbury. This scheme, contained in the book entitled _Leviathan_ (and in the treatise _De Cive_), cannot be appreciated without remembering the time when the book was written, and the circumstances to which it was addressed. So directly does it contemplate them that it may almost be called a political pamphlet—gigantic, but a pamphlet. The Civil War was raging. The supreme power in England was disputed between the King and the House of Commons. Ecclesiastics, both Episcopalian and Presbyterian, had been prominent in claiming authority for their religious views, and the nation was splitting up partly on political, partly on ecclesiastical lines. Hobbes was equally hostile to all ecclesiastics—to the Anglican theory of divine right, and to the Presbyterian theory of a covenant of the people with God. Yet he did not like to base society upon mere force, because in that he could find no foundation for justice or moral obligation. Hence he clung to the notion of a contract. But it was a new kind of contract, which, not being made with the Sovereign, and being itself irrevocable, can give no ground for insurrection. Seeing disunion and confusion all around him, and men divided by the pretensions of jarring authorities, Hobbes conceived that the three things needful were (1) to find a basis for power which should be permanent and inexpugnable, (2) to make power one and indivisible, and (3) to make it absolute and limitless. Perceiving the flaws in the theory, as old (in a rude form) as the thirteenth century, which founded government on a compact between Sovereign and People, he bases his Sovereignty on a covenant of each member of the community with every other member to surrender all their several rights and powers into the hands of one Person (or Body), who thereby becomes Sovereign, but as against whom, seeing that he is not himself a party to the compact, it cannot be annulled by those who made it, because they made it not with him but with one another. His authority is therefore permanent and unlimited; nor is he, like Bodin’s Sovereign, bound by any pre-existing institutions. As the people have, by anticipation, ratified all his acts, everything that he does, however harsh, is just, and gives them no ground for complaint. Indeed his power is justified by the Law of Nature, because the three fundamental Laws of Nature are (1) that all men should endeavour to secure peace, (2) that an individual man should renounce his original rights when the majority will to do so, (3) that every man should observe the covenants which have been made by him, including of course this supreme covenant.

Though Hobbes is chiefly concerned with establishing his Sovereign _de iure_, and making his _de iure_ autocracy complete, he does also conceive him as enjoying complete _de facto_ power. He could indeed do no otherwise, for the Sovereign he describes is not an actual Sovereign. Hobbes does not profess to be analysing existing States, or explaining existing institutions. He is presenting an ideal State, and arguing that mankind (and in particular England) will never be rid of their present troubles until this Absolute Sovereign of his has been installed with a _de iure_ title so fully recognized that _de facto_ power will follow. The Civil War had raised grave questions in the _de iure_ sphere, and it was natural to believe that, were those questions out of the way, Practical Mastery would accompany Legal Sovereignty. Nor was it so strange as some may fancy to-day, that a philosopher should doubt the possibility of securing peace and order under a monarch limited by law, or indeed under any government consisting of elements so antagonistic as Crown, Lords, and Commons, were then showing themselves to be. Hobbes is a thinker of singular clearness and precision. He is cogent in argument, and adheres to his main propositions with a consistency greater than Bodin had shown. He sometimes seems more disputatious than philosophical. But the reader who would judge him fairly must bear in mind that he is writing with a view to the circumstances of his own time, delivering his blows now at the Solemn League and Covenant, now at the Levellers, now at the parliamentary legalists[18].

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Footnote 18:

Hobbes goes so far as to wish to extinguish the right of private
judgement, and deems it part of the duty of the Sovereign to prescribe
opinions to his subjects, and in particular to inculcate the true
doctrine of Sovereignty.

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Towards the end of the following century Bentham revived Hobbes’s doctrine of Sovereignty, taking it over, however, not so much as either an ideal conception, or a suggestion pointing a way out of civil war, but rather as embodying the characteristic features of a normal State. Bentham was a man of extraordinary ingenuity, fertility, and boldness, but he was sometimes heedless; he lived before the days of what we call the historical method, and he had a hearty contempt, if not for history, yet for the legal institutions it had produced, which indeed he thought mostly wrong. Accordingly, neither the absolutistic proclivities of Hobbes, nor the inapplicability of the Hobbesian theory to the majority of existing governments, deterred him from adopting a doctrine which pleased him by its subjection of vague morality to precise legality, and by its vigorous assertion of the legal omnipotence of an authority which a reformer of his drastic type needed for the accomplishment of his purposes. Bentham therefore had practical reasons for his adhesion to the scheme of Hobbes, far removed as he was from Hobbes’s notions of the anarchic State of Nature and the original covenant. But John Austin, Bentham’s disciple, had less excuse for the use he made of Hobbes’s speculations. It has been doubted whether he understood Hobbes. However this may be, he would seem to have misconceived the position in which Hobbes stood, and to have taken the latter’s argument for an absolute Sovereign as the best way of constituting authority in a State, as a philosophical analysis of the nature and essence of authority in a normal State. Hobbes was the advocate of a scheme intended to cure actual political evils. Bentham was a practical reformer of the law, which certainly needed reform. Austin, however, wrote as a jurist, professing to describe the normal and typical State. He was therefore bound to have some regard to facts, and to present a theory of the State which would have explained and correlated the facts, putting them in their natural and true connexion. Instead of this he has given us a theory, which is so far from being that of the normal modern State, that it is applicable to only two kinds of States, those with an omnipotent legislature, of which the United Kingdom and the late South African Republic are almost the only examples, and those with an omnipotent monarch, of which Russia and Montenegro are perhaps the only instances among civilized countries. In nearly all free countries, except the United Kingdom, legislatures are now restrained by Rigid constitutions, so that there is no Sovereign answering the Austinian definition. In all Muhamadan countries the monarch is legally, as well as practically, restrained by his inability to change the Sacred Law; so that, even in those countries where despotism seems at first sight enthroned, the definition will not work. Even in the application of his own theory to the United Kingdom, Austin falls into an error which betrays its radical unsoundness. Though he defines a Sovereign as ‘the determinate superior who receives habitual obedience from the bulk of a given society’—a definition which belongs to the _de facto_ sphere and suits a _de facto_ sovereign, but does not touch the _de iure_ sovereign, who may have no means of enforcing obedience—still it is plain that his eye is chiefly fixed on law and legal right, and that he assumes that to the person who enjoys legal right obedience will in fact be rendered. A Greek tyrant, such as Agathocles at Syracuse, received habitual obedience from the bulk of the Syracusans; but he was clearly not Sovereign _de iure_[19]. But Austin, when he comes to the United Kingdom, finds his Sovereign not in Parliament, that is to say, in the Great Council of the Nation consisting of the Crown, the House of Lords, and the House of Commons, but in the two former parts of Parliament, along with—not the House of Commons, but—the qualified electors of the nation! This view is opposed not only to law, but also to history, which shows that the Great Council of the Nation has never been deemed to consist of or include ‘trustees’ (as Austin calls them) for the Nation, but to be the Nation itself, assembled for national purposes, its members being either in their own right or, as representatives, plenipotentiary, and enjoying, in contemplation of Law—just as much as did the primitive Folk Mot from which Parliament has gradually developed—the plenitude of the nation’s powers. It is moreover opposed to the facts of the case, because the electors of the country do not legislate, and have no legal means of legislating. Their consent is not required to the validity of the most revolutionary Act of Parliament, as the consent of a majority of the Swiss electors and Cantons is required to a change in the Constitution of the Helvetic Confederation. A statute might conceivably be passed, of which five-sixths of the electors notoriously disapproved, and yet it would be just as good a statute as one against which no voice had been raised. Parliament may even give itself a competence which the electors never contemplated, as it did when it passed the Septennial Act.

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Footnote 19:

Austin so far feels the difficulty of fitting his theory to the case
of tyrannies as to imply that it is to be applied in settled States
only. But this is to admit _pro tanto_ the inadequacy of the theory.

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Some of those who have admitted that Bentham’s and Austin’s theory is historically indefensible, have sought to excuse its faults on the ground that we must test theories, not by the facts of nascent communities, but by those which the fully-grown modern State presents. But it is in truth quite as inapplicable to most of these modern States as it is to ruder societies. Take, for instance, the Austro-Hungarian monarchy. Where, on Austin’s principles, does Sovereignty reside in this dual State? The ultimate legislative authority, that is to say, the authority which receives commands from no other authority, but gives them to others, is to be found in the so-called Delegations, each composed of thirty members of the Hungarian Parliament, and as many of the Austrian Reichsrath. But these are themselves chosen by the two subordinate Parliaments, and must therefore be subordinate to them, if the British House of Commons is subordinate to the British Electorate. Moreover, the Delegations can legislate on a few prescribed subjects only, all other subjects belonging either to the two Parliaments respectively, or, in the case of Austria, to the legislatures of the several provinces (_Kronländer_) which make up the Austrian federation, and the Delegations derive their authority from laws passed by the Austrian Reichsrath and by the Hungarian Parliament. Where then does Sovereignty reside? Is it in the authorities which made the Constitution? The Austrian half of the Monarchy received its Constitution from five Statutes passed in 1867, which can be changed only by a two-thirds majority in both Houses of the Reichsrath; the Hungarian half from the laws of 1848, which the Emperor King agreed to bring into force in 1867, and which apparently the Parliament, with the consent of the Monarch, can amend. There is evidently no hope of finding any one Sovereign, in the sense of the Austinian definition, for this great and powerful State[20]. Or take the United States, whose Constitution has become a sort of model for many more recent confederations. Austin places Sovereignty in the ultimate power which can alter the Constitution, viz. the people (or peoples)—I use both phrases to avoid controversy—of the States. But in the first place, the people (or peoples) of the States are not a body habitually acting. They did not act at all from 1810 till 1867. They have not acted since 1870. It was because it was impossible to get them to act that the question of slavery proved insoluble by constitutional means. Is there not something unreal and artificial in ascribing Sovereignty to a body which is almost always in abeyance? Moreover, the majorities by which the Constitution can legally be amended are very rarely attainable; and when they are not attainable, there would therefore seem to be no Sovereign at all. And as regards one point—the equal representation of the States in the Senate, even a three-fourths majority of States can do nothing against the will of the State or States proposed to be affected, a further absurd result of the doctrine. One might pursue the argument by examining the case of other federations, such as the Germanic Empire, both the old one and the new one, and show to what strange results these Austinian principles would lead. But the above illustrations may suffice to indicate the extreme artificiality of the doctrine that Sovereignty cannot be divided, as earlier illustrations have shown the inconveniences of confounding purely legal supremacy with actual mastery.

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Footnote 20:

An Austinian might perhaps say that the Austro-Hungarian monarchy
consists of two separate States, with no single Sovereign. But it is
unquestionably one State in the eye of international law, and the
Delegations have some powers incompatible with the existence of an
Austinian sovereign in either half of the monarchy.

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Austin denies that there is any difference between a government _de iure_ and one _de facto_, because Sovereignty _de iure_ must itself issue from the Sovereign himself, and the same person cannot be both creature and creator. If this means that the British Parliament and the Czar, being legally omnipotent cannot be legally controlled, it is an obvious, but infertile remark, and it conceals the really material fact that both authorities are obeyed because the long-settled custom or law of the country has formed the habit of obeying and the notion that it is a duty to obey. If it means that every Sovereign _de facto_ is also Sovereign _de iure_, or the converse, it is untrue. Hobbes had a reason for bringing in obedience as the test of the Sovereign. Bentham and Austin have not this reason, for they are in the sphere of law, and law is not concerned with obedience as a fact. The right of a Sovereign to be obeyed does not to the lawyer rest on Force, for he assumes that wherever law exists it will make itself prevail.