Chapter II: LEGAL SOVEREIGNTY (De Iure)

For the purposes of the lawyer a more definite conception is required. The sovereign authority is to him the person (or body) to whose directions the law attributes legal force, the person in whom resides as of right the ultimate power either of laying down general rules or of issuing isolated rules or commands, whose authority is that of the law itself. It is in this sense, and in this sense only, that the jurist is concerned with the question who is sovereign in a given community. In every normal modern State there exist many rules purporting to bind the citizen, and many public officers who are entitled, each in his proper sphere, to do certain acts or issue certain directions. Who has the right to make the rules? Who has the right to appoint and assign functions to the officers? The person or body to whom in the last resort the law attributes this right is the legally supreme power, or Sovereign, in the State. There may be intermediate authorities exercising delegated powers. Legal sovereignty evidently cannot reside in them; the search for it must be continued till the highest and ultimate source of law has been reached.

A householder in a municipality is asked to pay a paving rate. He inquires why he should pay it, and is referred to the resolution of the Town Council imposing it. He then asks what authority the Council has to levy the rate, and is referred to a section of the Act of Parliament whence the Council derives its powers. If he pushes curiosity further, and inquires what right Parliament has to confer these powers, the rate collector can only answer that everybody knows that in England Parliament makes the law, and that by the law no other authority can override or in any wise interfere with any expression of the will of Parliament. Parliament is supreme above all other authorities, or in other words, Parliament is Sovereign.

The process of discovering the Sovereign is in all normal modern States essentially the same. In an autocracy like that of Russia it is generally very short and simple, since all laws (except customs having legal force) and executive orders emanate directly or indirectly from the Czar, and by the law the Czar is the sole legislative authority. Both these cases are simple and easy, because we speedily reach one Person, as in Russia, or one Body of Persons, as in Britain, to whom the law attributes Sovereignty. But there are cases which present more difficulty, though the principles to be applied are the same.

In a country governed by a Rigid Constitution which limits the power of the legislature to certain subjects, or forbids it to transgress certain fundamental doctrines, the Sovereignty of the legislature is to that extent restricted. Within the sphere left open to it, it is supreme, while matters lying outside its sphere can be dealt with only by the authority (whether a Person or a Body) which made and can amend the Constitution. So far as regards those matters, therefore, ultimate Sovereignty remains with the authority aforesaid, and we may therefore say that in such a country legal Sovereignty is divided between two authorities, one (the Legislature) in constant, the other only in occasional action.

Another class of cases arises in a Federal State, where the powers of government are divided between the Central and the Local Legislatures, each having a sphere of its own determined by the constitution of the federation. In such a State the power of making laws belongs for some purposes to the Central, for some to the Local Legislatures. Thus in the United States, while Congress is everywhere the supreme legislative power for some subjects, the tariff, for instance, or copyright, or inter-state commerce, the legislature of each State is within that State supreme for other subjects, the law of marriage, for instance, or of sale, or of police administration. Each legislature therefore (Congress and the State Legislature) has only a part of the sum total of supreme legislative power; and each is moreover further limited by the fact that the Constitution of the United States restricts the general powers of Congress by forbidding it to do certain things, while the powers of each State Legislature are restricted not only by the Constitution of the particular State but by the Constitution of the United States also. These complications, however, do not affect the general principle. In every country the legal Sovereign is to be found in the authority, be it a Person or a Body, whose expressed will binds others, and whose will is not liable to be overruled by the expressed will of any one placed above him or it. The law may, in giving this supremacy, limit it to certain departments, and may divide the whole field of legislative or executive command between two or more authorities. The Sovereignty of each of these authorities will then be, to the lawyer’s mind, a partial Sovereignty. But it will none the less be a true Sovereignty, sufficient for the purposes of the lawyer. He may sometimes find it troublesome to determine in any particular instance the range of action allotted to each of the several Sovereign authorities. But so also is it sometimes troublesome to decide how far a confessedly inferior authority has kept within the limits of the power conferred upon it by the supreme authority. The question is in both sets of cases a question of interpreting the law, which defines in the one case the sphere of power, in the other case the extent of delegation actually made; and this difficulty nowise affects the truth that legal Sovereignty is capable of being divided between co-ordinate authorities, or of being from time to time interrupted, or rather overridden, by the action of a power not regularly at work. It will be understood that I am now dealing with Legal Sovereignty only, and not at this stage touching the question of whether, from the point of view of philosophic theory, Sovereignty is capable of division.

Finally, let it be noted that where Sovereignty is divided between two or more authorities, one of those (or possibly even more than one) may have executive functions only. Where there is but one Sovereign Person or Body, that Person or Body will evidently have both legislative and executive powers, _i.e._ will be entitled to issue special commands as well as to prescribe general rules. But a division of Sovereignty may assign legislative functions to one authority, executive to another. In the United States, for instance, the President is, by the Constitution, Sovereign for certain executive purposes (_e.g._ the command of the army), and the legislature cannot deprive him of that Sovereignty. If Congress were to pass an Act taking the command of the army from him, that Act would be void. So in England four centuries ago, although Parliament was already beginning to be recognized as sovereign for legislative purposes, the king had, in some departments, an executive sovereignty which the two Houses of Parliament did not dispute; and he laid claim in the time of the first two Stuarts to a sort of concurrent legislative sovereignty, which it required first a civil war and then a revolution finally to negative and extinguish.

So also it has been argued that Legal Sovereignty may be temporary, yet complete while it lasts, as was that of a Roman dictator. The phenomenon is so rare that we need not spend time on discussing it; but there seems to be in principle nothing to prevent absolute legal control from being duly vested in a person or body of persons for a term which he, or they, cannot extend.

The kind of Sovereignty we have been considering is created by and concerned with law, and law only. It has nothing to do with the actual forces that exist in a State, nor with the question to whom obedience is in fact rendered by the citizens in the last resort. It represents merely the theory of the law, which may or may not coincide with the actual facts of the case, just as the validity of the demonstration of the fifth proposition in the first book of Euclid has nothing to do with the accuracy with which the lines of any actual figure of that proposition are drawn. The triangle in the figure which appears in a particular copy of the book may not have equal sides, nor the angles at the base be equal; this does not affect the soundness of the proof, which assumes the correctness of the figure. So law assumes, and must assume all through, that the machinery required for its enforcement is working _in vacuo_, steadily, equably, and in a manner capable of overcoming resistance. The actual receiving of obedience is therefore not (as some have argued) the characteristic mark of a Sovereign authority, but is a postulate of the law with regard to each and every of the authorities it recognizes. Penal laws no doubt contemplate transgression, but they assume the power of overcoming it. With the fact that obedience is in any given community rendered imperfectly or not rendered at all, Law as such has nothing to do. In other words, the question of where Legal Supremacy resides is a pure question of Right as defined by law. The Sovereign who exists as of right (_de iure_) has not necessarily anything to do with the Sovereign who prevails in fact (_de facto_), though, as we shall see presently, the two conceptions, however distinct scientifically, exercise a significant influence each on the other.

Further: the question, Who is Legal Sovereign? stands quite apart from the questions, Why is he Sovereign? and, Who made him Sovereign? The historical facts which have vested power in any given Sovereign, as well as the moral grounds on which he is entitled to obedience, lie outside the questions with which Law is concerned, and belong to history, or to political philosophy, or to ethics; and nothing but confusion is caused by intruding them into the purely legal questions of the determination of the Sovereign and the definition of his powers. Even the manner in which, or the determination of the persons by whom, the Legal Sovereign is chosen is a matter distinct from the nature and scope of his authority. He is not the less a Sovereign in the contemplation of law because he reigns not by his own right but by the choice of others, as an elective monarch (like the Romano-Germanic emperor) did, or as an elective assembly does to-day. The appointing body, even if it can in a stated way and at a stated time recall its appointment, is not sovereign over him while his powers last. The fact that the House of Commons, a part of the Legal Sovereign of England, is chosen by the people, and that many members of the House of Lords, another part of the Legal Sovereign, have been appointed by the Crown, does not affect the Sovereignty of Parliament, because neither the people nor the Crown have the right of issuing directions, legally binding, to the persons they have selected.

We have already seen that Legal Sovereignty may be limited or divided. But it is further to be noted that the totality of possible legal sovereignty may, in a given State, not be vested either in one sovereign or in all the sovereign bodies and persons taken together. In other words, there may be some things which by the constitution of the State no authority is competent to do, because those things have been placed altogether out of the reach of legislation. We have already remarked that all the American constitutions, for instance, both State and Federal, forbid the legislature to interfere with the so-called ‘primordial rights’ of the citizen. There is thus in the United States no authority invested with legal power, in time of peace, to prohibit public meetings not threatening public order, or to suppress a newspaper. It is true that the people of each State (or of the Union) retain the power to alter their Constitution, but until or unless they do alter it the acting legal Sovereign remains debarred from an important part of the power of Sovereignty. And we may imagine a case in which a Constitution has been enacted with no provision for any legal method of amending it[6]. In fact, a somewhat similar condition of things exists in all Musulman countries. In Turkey, the Sultan, though Sovereign, is subject to the Sheriat or Sacred Law, which he cannot alter; and which no power exists capable of altering. A good deal may be done in the way of interpretation; and the desired Fetwa or solemnly rendered opinion of the Chief Mufti or Sheik-ul-Islam can generally be obtained by adequate extra-legal pressure on the Sultan’s part. But no Sultan would venture to extort, and probably no Mufti to render, a fetwa in the teeth of some sentence of the Koran itself, which, with the Traditions, is the ultimate source of the Sacred Law, binding all Muslims always and everywhere.

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Footnote 6:

This seems to be the case in Spain. Some of the republics of antiquity
professed to have unchangeable laws, but few, if any, of these fully
answered to the conception of a Rigid Constitution as we understand
it. See Essay III, vol. i. p. 145.

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