Delphi complete works of.., p.427
Delphi Complete Works of Stephen Leacock, page 427
3. Course of Development: the Aristotelian Cycle. The earlier stages of the social evolution seem therefore to lend themselves but poorly to any scheme of orderly and uniform progression. Much the same difficulty meets us in trying to reduce the successive stages of historical development to any general plan. It is clear that between the rudimentary form of social control exercised by the chief of a primitive tribe, and the complex and effective organization of a modern civilized government, a vast historical evolution is apparent. But to reduce the stages of this progression to a necessary coördinated sequence appears an impossible task. The same goal has been reached by different paths; not all political communities have passed through the same phases of development. What has been the result of an internal evolution in some has been effected in others by imitation and adaptation of what already existed elsewhere. Democratic government has been attained in various modern states by quite distinct historical stages.
Notwithstanding these considerations, the attempt to reduce political progress to the formula of a prescribed course of development has often been made. At the very outset of political speculation we have the famous “cycle theory” of Plato, and a theory of progressive change laid down by Aristotle. Plato thought that the natural life of a state must move through a definite course of political changes. Aristocracy, the rule of the best, passed into timocracy, — the government of honor or rule of the military class. This changed to oligarchy, then to mob rule, and finally to tyranny. The views of Aristotle will be considered in some detail in a later chapter. While criticising Plato’s opinions and pointing out that successive political revolutions do not always follow the same order of development, Aristotle nevertheless considers the transition from monarchy to oligarchy, from oligarchy to tyranny, and from tyranny to democracy to have been the normal or usual nature of Hellenic political change. However applicable this may have been to the history of the Greek city states of the seventh and following centuries before the Christian era, it cannot be accepted as any general or universal key to the political evolution of later ages.
4. Military and Economic Factors. Equally attractive and no less futile is the attempt to ascribe the evolution of the modern state to the operation of a single, or at any rate a dominant, motive power. Of this an illustration is seen in the “History of Politics,” already mentioned. “The origin of the state, or political society,” says Mr. Jenks, “is to be found in the development of the art of war.... There is not the slightest difficulty in proving that all political communities of the modern type owe their existence to successful warfare.” It is of course quite true that all modern political communities have had to fight for their existence. It is also true that certain aspects of their organization — standing armies, conscription, etc. — bear witness to the importance of the function of external defense. But it is not to be supposed on this account that the type assumed by modern political communities is to be ascribed entirely to the exigencies of their military life. Contrast with this the standpoint of the Marxian socialists of Germany, who tell us that the development of government, along with that of all social institutions, is to be attributed solely to economic factors. The state represents merely the organization by which the property-owning class enjoys the fruits of the laborer’s toil. In each of these cases a single factor in the history of the modern state is unduly magnified to appear as the paramount force in its development.
5. Some General Features of Political Evolution. To trace the rise and growth of any particular state, and the different phases of the evolution of its institutions, is the task of history, not of Political Science. Speaking of the state in general it is impossible to predicate any universal course of development or any necessary series of forms which it must assume. Looking, however, at the present stage that has been reached in the growth of political institutions, we may nevertheless indicate some of those general characteristics which the modern state has acquired and which differentiate it so entirely from rudimentary or primitive governments. In the first place there has been, speaking broadly, a progressive increase in the extent of territory occupied by a single state. At the dawn of history, mankind is found grouped in vast numbers of small political communities. On the map of the world to-day we find the greater part of the inhabited territory controlled by a relatively small group of vast states. Of the 52,300,000 square miles which make up the land surface of the globe the British Empire covers 11,516,000, the Russian Empire 8,660,000, the Chinese Empire 4,277,000, and the United States 3,567,000. True, this widening area of the territorial political unit has not been literally continuous. The Roman Empire was vastly greater than such small modern states as Greece or Roumania. But the tendency, though at times interrupted or over-accelerated, is nevertheless a leading factor in the history of the world. In the second place we may note the constantly increasing fixity and certainty of the action of the state. The rule of a primitive government, especially if spread over a relatively large area, is uncertain and irregular. Offenses against its authority may or may not meet with retribution, and when it punishes it acts with a vengeful severity arising from its weakness. In many cases its sway is little more than nominal. But the progressive development of political institutions has given to the state an organization which insures to it a definite and regular action. A third essential feature in the development of the state is the growth of political consciousness. The earlier stages of social union are largely intuitive and unconscious; nor does there ever come a single point of time at which collective action suddenly becomes deliberate. We have seen that the assumption of such a step in political development was one of the errors of the social-contract theory. But in comparing rudimentary government with modern civilized government we can observe the essential difference that exists in this respect.
Of the other broad features of the development of social structure, the separation that has been effected between the religious and the political aspects of society may be especially noted. The early forms of government were theocratic. The functions of priest and king were intermingled or closely allied. The divine law was presumed to constitute the sanction behind human enactments. Such is the system on which rested the theocracy of the Jews. In the modern state, however generally it may be admitted among the citizens that legislation ought to be based on the ethical principles of Christianity, the interpreters of the divine law, in the form of the priesthood, are not placed in a position of civil authority. The guidance of the spiritual and the political life of the community is in different hands. The nature of the earlier form of the state is seen in the survival of established or partially established churches in Great Britain and some other European countries. The formerly prevalent practice of invoking the authority of the state to suppress heresy and unbelief rested on the same conception of organization. The progressive separation of church and state has been one of the evident results of political evolution.
The growth of democratic government, the participation of the great mass of the people in political control, is the most important feature in the development of the state. Democratic government does not, of course, exist in all the great civilized states, but in the chief of them — either in the shape of a republic or under the more or less nominal semblance of monarchy — it has become an accepted fact. The progress of democracy has not, of course, been continuous and unbroken. We have but to compare the republic of Athens with the principalities of the dark ages, or with France of the eighteenth century, to see that the development of self-government has not moved in a continuous advance. But it is hardly to be denied that the principle of democratic rule has now become a permanent and essential factor in political institutions and that it alone can form the basis of the state of the future.
READINGS SUGGESTED
Aristotle’s Politics (Jowett’s translation, 1885), bk. i.
Jenks, E., History of Politics (1900), chap. i-vii.
FURTHER AUTHORITIES
Freeman, E. A., Comparative Politics (1873).
McLennan, J. F., The Patriarchal Theory (1885).
Morgan, L. H., Ancient Society (1877).
Westermarck, E., History of Human Marriage (1891).
Tarde, G., Les Transformations du Droit (13th edition), (1900).
Fowler, W., The City-State (1893).
CHAPTER IV. THE SOVEREIGNTY OF THE STATE
1. ANALYSIS OF the Conception of Sovereignty; Meaning of Law and Right. — 2. The Location of Sovereignty in Existing Governments. — 3. Criticism of the Doctrine of Sovereignty; Sir Henry Maine’s Objections. — 4. Theory of Political Sovereignty. — 5. Criticism. — 6. Dual or Divided Sovereignty.
1. Analysis of the Conception of Sovereignty; Meaning of Law and Right. Having considered in the preceding chapters the general idea of the state as an organized community occupying a definite territory, it is next necessary to make a further analysis of the organization itself. This will involve the discussion of the relations existing between the individual citizen and the state as a whole. The two central points around which the discussion of the present and the succeeding chapter will turn, are those of the sovereignty of the state, and the liberty of the individual. These two ideas, which appear at first sight to be mutually contradictory, will be shown to be not only reconcilable, but complementary and correlative to one another.
The question of the sovereignty of the state has long been a vexed topic of political discussion, and one that has given rise to the most serious difficulties and misunderstandings. The proposition that the state is absolutely sovereign over the individual has proved itself a stumbling-block and a rock of offense to the student of political theory. Take, for example, the enunciation of the principle of sovereignty given by Professor Burgess. “I understand by it,” he says, “the original, absolute, unlimited, universal power over the individual subject and all associations of subjects.” This is a hard saying and one calculated to call forth at first sight a most emphatic contradiction. It seems to sanction the tyranny of the state, and to involve the sacrifice of individual rights. A nearer analysis of the proper meaning to be attached to the sovereignty of the state ought to rob it of all offensive connotation. What is meant is simply this. The state is an organized community. It comes into existence when the relations of control over and obedience from the individual person are established. This obedience may or may not receive the approval of the individual rendering it. The fact of obedience is all that is needed in order that the state may be said to exist. Somewhere within the state there will exist a certain person or body of persons whose commands receive obedience. The commands may be just or unjust, morally speaking, and the persons in power may be put in a position to issue them, either by general consent or by the use of physical force. But in either case they are able to make their commands good by actual coercion. Unless there is such a body there is no state. The commands thus given are called laws. A law, then, is a command issued by the state. Can there, then, be any limit, any legal limit, to the sovereignty, or legal supremacy, of the state? Obviously not, for such a limit would imply a contradiction in terms. A legal limit must mean a limit imposed by a lawgiving authority. Now the lawgiving authority is the sovereign power of the state, and any limits it might put on its own power would be removed as soon as it saw fit to remove them. The lawgiving power of the lawgiving body is therefore of necessity unlimited. The state, in other words, is legally sovereign. Looked at in this light the matter simply resolves itself into an equation in terms.
An examination of the fundamental definition of law and sovereignty laid down by the English jurist John Austin may make still clearer this point of view. “If a determinate human superior not in the habit of obedience to a like superior receive habitual obedience from the bulk of a given society, that determinate superior is sovereign in that society, and that society (including the superior) is a society political and independent.” According to this, then, a state (or “society political and independent,” as Austin calls it) is a community in which such obedience is given and received. The fact of rule and obedience is the test of the existence of a state. A law is a command calling for such obedience. We must carefully note, too, the conception of a right, a legal right, which will follow from these premises. It will mean any privilege or immunity enjoyed by a citizen as against any of his fellow citizens, granted by the sovereign power of the state and upheld by that power. This, it will be seen, is altogether different from a right in the ethical or moral sense. Before the French Revolution, for example, under the state existing in the eighteenth century, the feudal lord had a “right” to collect most oppressive dues from his inferior. Similarly a despot might grant to one of his underlings the “right” of life and death over the people of a subjugated province. It will follow that in the organization of the state the individual can have no “rights” against the state itself. For this, since it is the state which creates a legal right, would involve a contradiction in terms. It is to be observed that as thus understood, the conception of sovereignty, law, and right is altogether divorced from morality and ethics.
The misunderstanding of this restricted sense in which the state is sovereign and law is unlimited in its power leads to an altogether fallacious form of objection. Surely, it is urged, the state has no right to interfere with such things as the religion and private life of the individual? Surely there are limits to the province in which the commands of the state may intrude? There are assuredly such limits in the moral sense; certainly most persons would think it morally wrong for the state to dictate as to the religious creed of the individual. But this does not imply any legal limit to the jurisdiction of the state. The sovereign body of the state can be under no legal restriction as to its interference in religion or any private matter. If it were under such a limitation then it would not be a sovereign body; the sovereignty would lie in that person or persons in whose power it lay to assign and mark off these limits. The same answer is to be made to the various other attempts to put a “limit” on the extent of sovereign power. Bluntschli, for instance, tells us that “the state as a whole is not almighty, for it is limited externally by the rights of other states, and internally by its own nature and by the rights of its individual members.” Bentham claimed that the sovereignty of the state was limited by its treaties with other states. But each of these “limits” is of an ethical, not a legal character. Legally speaking the state is almighty.
The misunderstanding so easily engendered here is heightened by the ambiguity of some of the terminology employed in this connection. The word right has both its moral and its legal sense. In the former application it extends over the whole field of conduct, and refers to all those actions and forbearances which it is our moral duty to perform; in the legal sense it refers only to those actions or forbearances the performance of which is rendered compulsory by the coercive power of the state. Similarly the word sovereignty is not only used in the sense of legal supremacy, but has also another connotation. It is used, that is to say, in a purely nominal sense, to indicate the titular supremacy of a monarch. King Edward VII is the sovereign of the United Kingdom of Great Britain and Ireland, but this is only titular and not legal sovereignty. The distinction is sufficiently obvious to need no further explanation.
2. The Location of Sovereignty in Existing Governments. The nature of sovereignty and law as thus described may be further illustrated by examining its actual application to the case of some of the chief states of the world. The example most easily understood is that of the British Empire. Here the sovereign legal authority lies in the Parliament, — the word Parliament having of course its technical legal meaning of king, lords, and commons. Parliament is an absolute legal sovereign. Every law that it sees fit to make is, ipso facto, a valid law. There is no (legal) restriction on the extent of its jurisdiction. No British court can question the validity of a statute duly passed by Parliament. It is (legally) quite unrestrained by custom, by the legislation of the past, or by any of the written documents (Magna Carta, etc.) which may be said to form part of the British Constitution. No individual citizen has any (legal) “rights” which the sovereign power of Parliament could not annul; no local body or colony has any powers of self-government which an act of Parliament could not abolish.
The example of the British Empire seems to show the legal supremacy of the state in simple form. The case of the United States, though more complex, is reducible to the same elements. Here, at first sight, the presence of the sovereign body is not so apparent. The powers of the government of any state of the Union — either executive or legislative — are powers of limited legal extent. Similarly the powers of the federal government — of the President and of Congress, or of both together — are powers of limited extent. The Congress is not legally empowered, as is the British Parliament, to make any law it may think proper, and the courts can question the validity of any statute, either state or federal, which transcends the legal powers of those who made it. For example, a federal law imposing an export duty would not be legally binding. But all this is only to say that neither the President nor the Congress nor the state government is the body invested with the sovereign power of the state. The supreme authority lies elsewhere. It is in that body which has power (legally) to make any law it wishes, that is to say in the body which has the legal right to amend the Constitution of the United States. It is true that this body, consisting of a two-thirds majority of Congress, or a special convention, with the ratification of three fourths of the state legislatures or of special conventions, is not in permanent session as a united governing body. But it is clear that theoretically at any rate it exists, and may be looked upon as having a legal supremacy as complete as that of the British Parliament. In like manner in the case of France, neither the President nor the Chamber of Deputies nor the Senate has unlimited legal competence. The powers of all of them are restricted by the “constitutional laws” of the French Republic. But the Senate and the Deputies may be fused together into a joint session or national assembly, in which capacity they may amend the constitution and are legally supreme.
