Sovereignty

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Sovereignty

The concept of “sovereignty” implies a theory of politics which claims that in every system of government there must be some absolute power of final decision exercised by some person or body recognized both as competent to decide and as able to enforce the decision. This person or body is called the sovereign. The simplest form of the theory is the common assertion that “the state is sovereign,” which is usually a tautology, just as the expression “sovereign state” can be a pleonasm. For the concept of “the state” came into use at about the same time as the concept of sovereignty, and it served the same purpose and had substantially the same meaning. Both concepts provided secular symbols to replace the decayed religious basis for authority.

The theory of sovereignty purports to state an essential condition for political order. Political theory has perpetually oscillated between stressing one or the other of the two primal functions of government—survival and betterment. Sovereignty sees the world in the light of survival alone and is most appropriate as a theory when the world of settled expectations seems urgently threatened. The phenomenon and the concept of sovereignty are best understood historically since they originated as an expression of the search for a purely secular basis for authority amid the new state organizations in Europe of the sixteenth and seventeenth centuries.

Like all political theories, the theory of sovereignty has both a prescriptive and a descriptive element. It has been argued that different statesmen and philosophers just happened to emphasize one or the other of these elements; but one could also say that these are only differences of degree and that the theory necessarily claims both that sovereignty exists and that it is relevant to some favored purpose. For example, Blackstone asserted (1765-1769) that there is and must be in every state a supreme, irresistible, absolute, and uncontrolled authority, in which the jura summa imperil, or the right of sovereignty, resides. This supreme authority is by the constitution of Great Britain vested in King, Lords, and Commons. The claim has both an empirical and a logical character—“there is and must be in every. . . .” Plainly, Blackstone‘s claim was not an induction from widespread observation or the fruit of the application of comparative method; it was meant to be common sense, perhaps a “self-evident” truth, or rather something necessarily involved in the concept of the state. As an empirical proposition, it was obviously false. Jeremy Bentham devoted much of his Fragment on Government (1776) to exposing and ridiculing this claim. He asked whether Black-stone thought that the Swiss and the Germans had never known real government. Many states did not and do not possess such a unity, clarity, and effectiveness of command. Plainly, Blackstone thought that all governments ought to possess some clear sovereign power. The theory is much more plausible as a prescriptive proposition than as a descriptive one: States that lack sovereignty commonly find themselves in difficulties, both in defending themselves and in resolving internal conflicts.

By 1775 the former British colonists in North America had come not merely to regard the assertion of parliamentary sovereignty as tyranny but to equate the concept itself with tyranny. “Only the laws are sovereign,” said John Adams of the new Massachusetts constitution—a remark, which if taken literally, states an impossibility almost as obvious as the famous republican boast of “a government of laws and not of men” if rule by one sovereign was impossible or undesirable, so was rule by laws alone. Sovereignty to the American Whigs was not the minimum condition of any civilized order; it was the threat of intervention against an existing, traditional order. The theory of federalism was put forward to contradict that of sovereignty. For “federalism” was not just the name given to the peculiar arrangements by which 13 allegedly sovereign states associated themselves for certain specific or general purposes; it was also a theory of government (as the authors of Paper 39 in The Federalist argued at the time, and as Harold Laski did later in Studies in the Problem of Sovereignty [1917]). And even in Britain there were those who argued that Parliament itself was bound by the “fundamental laws of the constitution.” This might seem implausible, but Lord Chatham, the elder Pitt, could argue that the Stamp Act was, quite simply, unconstitutional. He said that Parliament held sovereign power only over those who were represented by it—giving rise to the most telling slogan of the so-called American Revolution: “Taxation without representation is tyranny.”

Yet, on the other hand, it could be argued that the basic truth of the theory of sovereignty was demonstrated even amid the federalism and pluralism of the United States constitution of 1787. For after doing nearly everything possible to ensure that the president was both checked and balanced, the founding fathers nevertheless made the president the commander-in-chief of the armed forces and specifically gave him unlimited power to en-force the existing laws. The granting of the military power might appear to be due to exceptional circumstances—although a certain simplicity was revealed in thinking that the fear of war was exceptional; but the power to enforce the laws was no more and no less than what Hobbes meant in his famous epigram: “Covenants without the sword are vain.”

These two functions of government, the defense of the realm and the enforcement of law and order, show that there is at least a germ of truth in even the most extreme formulation of the theory of sovereignty. All the wiser opponents of the extreme view of sovereignty did, in fact, see the difficulty. Fortescue, for instance, described England in the mid-fifteenth century as regimen politicum et regale ([1714] 1885, p. 119)—politicum in that the king could only declare what the law was after consulting with his peers, but also regale in that he was absolute in the task of enforcing the laws, punishing offenders, and defending the realm. Bracton in his De legibus et consuetudinibus Angliae (1569) had made a similar point almost two centuries before: There was a sphere of absolute royal prerogative, the gubernaculum, but there was also a sphere of absolute legal restraint, the jurisdictio—the king‘s duty was simply to declare and enforce the laws, and if he presumed to make new laws, the courts or Parliament could declare such acts illegal (see Mcllwain 1940). The great debate of the Renaissance and early modern period was between those who said that “the first business of a government is to govern” (and justified this by the theory of sovereignty) and those who said either that “all government rests on consent” (and tried to justify this by theories of pluralism or of individualism) or that all government is “under natural law” and man should not attempt to change it. Although it is clear that this debate is now exhausted, the theory of sovereignty in a full sense did fulfill a particular political need in the particular circumstances of Europe in the sixteenth and seventeenth centuries. Before Bodin the use of the concept of sovereignty is an anachronism, al-though a depressingly common one. It was unknown to the Roman tradition of politics. Even the most famous and extreme formulation of imperial authority, in the Institutes of Justinian, does not contain a conception of sovereignty as understood by Bodin, Hobbes, Austin, or Jellinek. Sed et quod principi placuit, legis habet vigorem—“what pleases the Prince has the force of law”—is immediately qualified by cum populus ei et in eum omne suum imperium et potestatem concessit—“for the people make over to him their whole power and authority” (Institutions, book 1, tit. 2, sec. 6). As a descriptive theory, this is plainly false. The people of Rome never did any such thing, nor were they ever in a position to do so. But the prescriptive argument is more substantial; it reminded even the heirs of Augustus Caesar that it was politically necessary for them to govern according to at least a myth of popularity, because even their power rested upon the consent of subjects who potentially had the power to overthrow the government.

The concept of sovereignty was also unknown to medieval Christendom. Disputes between popes and emperors often can be restated in terms of sovereignty; but if the two sides had understood this term, they would have had no dispute over it. As Christians, both recognized that some things were Caesar‘s and others, God‘s. The emperor held sovereign power over those things secular and the pope was sovereign over those things deemed to be divine. But to admit divided sovereignty is to make the concept almost meaningless. The papal-imperial controversies were not about sovereignty but about political predominance. Medieval political thought was inherently both constitutional and hierarchical. The rights and duties of kings were proper matters of dispute, but all agreed that they were bound by law—indeed, by different types of law: eternal, divine, natural, and positive law. Kings might claim to have the sole right to declare what the positive law was, but they could not claim to create it. The idea of creating new law by statute was an idea new to the Renaissance. To claim that the king was above the law would previously have been a kind of blasphemy; and to claim that “law” meant only what the king or sovereign body in fact enforced would have appeared a trivial cynicism.

Bodin. The theory of sovereignty that emerged from Bodin‘s Six Bookes of a Commonweale (1576) was a practical response to tension between the claims of church and state. He wrote as France was tearing itself to pieces in wars of religion. His patron, Francois, due d‘Alencon, was the official leader of the party of the politiques, who held that the state was primarily concerned with the maintenance of order and not with the establishment of true religion; therefore they sought, like the supporters of the “new monarchies” elsewhere in Eu-rope, to strengthen the crown against both the nobility and the church. Like Hobbes, Bodin saw civil war as the worst of all evils; he defined sovereignty so as to leave no possible room for any right of resistance (in an age when both Protestant and Roman Catholic theologians took turns, as circumstances varied, in producing learned justifications of tyrannicide). “It is clear that the principal mark of sovereign majesty .. . is the right to im-pose laws generally on all subjects regardless of their consent. .. . If he is to govern the state well, a sovereign prince must be above the law . . .” (1576, p. 32 in the 1955 edition). Thus, the essence of sovereignty was the power to command, and commands must proceed from a single will. Since law was simply the command of the sovereign, obligation could not be conditional upon the justice of the command, but followed simply from its authenticity. “Open, in the King‘s name!” was to be enough. Bodin thought he had found in the existence of this principle of sovereignty a universal recipe for political stability.

This formulation had obvious descriptive and prescriptive advantages over that of medieval political thought. But Bodin was careful to make reasonably clear that his sovereign is not absolute and that, like Aristotle‘s monarch, he is not to be confused with a tyrant. He is bound by the natural law and the laws declared by God. For instance, “God has declared explicitly in His Law that it is not just to take, or even to covet, the goods of another. Those who defend such opinions are even more dangerous than those who act on them. They show the lion his claws, and arm princes under a cover of just claims” (ibid., p. 35). He drew a curious distinction between law, which is a command by the sovereign, and right, which is a matter of equity and litigation, somehow apart from the sovereign. The founder of the theory of sovereignty was either too realistic descriptively or not ruthless enough prescriptively to make his sovereign completely secure. But he did make power the distinguishing mark of the ruler, rather than justice or the judicial function. He did not say, however, as did Hobbes, that there is no right or wrong until the sovereign makes laws creating such distinctions.

Hobbes . In Leviathan, Hobbes made the sovereign both morally and politically absolute. He at-tacked the whole Aristotelian tradition of moral philosophy and stated that “this private measure of good is a doctrine, not only vain, but also pernicious to the public state” (1651, p. 372 in 1914 edition). Only law creates the distinction of right and wrong, and law is the creation of the sovereign. The fundamental law of nature is self-preservation; only sovereign power can prevent men from destroying each other; and the only sovereign power to be obeyed is an effective one—obligation ceases at the moment when a sovereign power ceases to be able to protect the lives of his subjects. Here is a ruthlessly rational view of sovereignty. There is no room for loyalty in the world of Hobbes. Most theories of political obligation had pictured sacrifice for the true monarch as the height of glory, but for Hobbes such terms as “sacrifice,” “true monarch,” and “glory” (or “honor”) were metaphysical nonsense and, indeed, “baited hooks.” He is astonishingly modern. He even speaks up for tyranny, saying that “the name of Tyranny signifieth nothing more, nor less, than the name of Sovereignty. . . . I think the toleration of a professed hatred of Tyranny is a Toleration of hatred to Commonwealth in generall” (ibid., p. 388). Nothing is worse than the lack of sovereign power, that is, the state of nature; or the belief that power can be divided: “If there had not first been an opinion received of the greatest part of England, that these Powers were divided between the King and the Lords, and the House of Commons, the people had never been divided and fallen into this Civill Warre” (zM.,p. 95).

Both Hobbes and Bodin were preoccupied with the problem of civil war; their theories are appropriate to states of emergency. And in Hobbes‘s theory, too, although the sovereign is absolute, he is bound by the laws of nature. These are no longer moral matters: the law of self-preservation dictates that no one can be expected to take his own life. Therefore, although a man may be commanded as a soldier, he may properly purchase a substitute; and as for men who run away in battle, “when they do it not out of treachery, but fear, they are not esteemed to do it unjustly, but dishonorably!” (ibid., p. 115). Thus, the germ of the nineteenth-century bourgeois is planted in a work that other-wise might seem to be a throwback to Renaissance tyranny. Sovereignty is once again passionately advocated—and yet limited.

Machiavelli . A negative question may throw some light on this paradox: Why did not Machiavelli, of all men, develop a doctrine of sovereignty? In one sense he did, implicitly, throughout The Prince. Then in The Discourses he said: “Those republics that cannot against impending danger take refuge under a dictator or some such authority will in serious emergencies always be ruined” (Chief Works . . ., vol. 1, p. 269). But by “republic” he meant a type of government in which there is a citizen body representative at least of the main social forces. Clearly, he thought, as did Aristotle, that this type of government is both the best and in the long run the most stable. But he realized that it is not always possible. And he was concerned not with a legalistic question but with the realistic question of the different needs during emergencies and under normal conditions. States that are threatened by external aggression or by severe internal conflict or that are in the process of being founded need princely (or sovereign) rule; those that have solved these difficulties need to spread power to ensure their stability through time, that is, to politicize themselves.

Machiavelli is perhaps more realistic than either Bodin or Hobbes in recognizing two archetypal situations, with different needs: normal politics (peace), which is republican, and states of emergency (war), which are dictatorial. This can be seen in the doctrine of “constitutional dictatorship” in the Roman Republic (see Rossiter 1948) and in later times in the assumption of emergency powers by Lincoln in the American Civil War and by Churchill in World War n. “Is there, in all republics,” asked Lincoln in 1861, “this inherent and fatal weakness? Must a government, of necessity, be too strong for the liberties of its people, or too weak to maintain its own existence?” (Speeches . . ., p. 176). If sovereignty is taken as a potentiality to be realized in what are recognized as times of emergency, and not as a day-to-day activity, then there is no contradiction between the theory of sovereign power and the theory of representative consent. The same way of resolving the problem of sovereignty is implied in Rousseau‘s famous aphorism that however strong a man is, he is never strong enough to remain master always unless he transform his might into right and obedience into duty.

There is a long history of the intricate and largely futile attempts to reconcile the theory of sovereignty with that of consent (see Merriam 1900). The problem has seemed at once more urgent and intractable since the political consequences of the industrial revolution have made it clear that strong governments can thrive only with the active participation of the masses—whether in the manner of totalitarianism or of political democracy. The almost meaningless rhetoric of “sovereignty of the people” long held sway both in the United States and in France. In the United States it disguised the actual location of the exercise of central power; in France it long helped to prevent its exercise at all; and in both cases it strengthened what both Alexis de Tocqueville and John Stuart Mill called “the tyranny of public opinion.”

The attempt to define a “sovereignty of Parliament” has nonetheless some considerable historical and philosophical interest. For it can be truly said that Britain lost any chance of conciliation with her North American colonies because of this dogma. To most men in Whitehall and Westminster, it seemed part of tradition, nature, and logic; to men in Boston, New York, and Williamsburg it seemed a specific threat. Even the promise not to exercise it for reasons of political prudence, such as Burke proposed, could not pacify the colonists when even Burke and the Rockingham Whigs, let alone the king‘s government, insisted on the retention of the theory as a necessary ultimate sanction. Burke himself had drafted the Declaratory Act of 1766, perhaps the high-water mark of the theory of sovereignty and certainly one of the strangest acts ever to appear in the statute book, for it added nothing to the law but only stated what was already clearly the case: that the power of Parliament was unlimited in law. But on both sides the question was, after all, not what could Parliament do but what was it likely to do, having in mind precedents and, still more, the traditions and habits of the people it had to govern. No wonder many so-called purely practical men appeared grossly doctrinaire on the point of sovereignty; and no wonder that many others felt torn between constitutional authority and sovereign power. A perplexed member of Parliament said during the debate on the repeal of the Stamp Act in 1766 that “two opinions, both equally true, (though carrying with them a seeming contradiction in this particular) were set before us. The one, that in all free countries no one can be taxed but by himself, or representative. The other, that there never was any country, since the Creation, where there was not somewhere lodged, for the superintendency of the whole, one supreme legislative authority, controlling, directing, and governing the whole” (Great Britain, Parliament 1813, vol. 16, cols. 108-109). “Seeming contradiction” was right. But for generations English lawyers stubbornly treated the doctrine of parliamentary sovereignty as if it were a political doctrine and not simply a legal doctrine.

Austin. Closely following Jeremy Bentham, John Austin argued that if a determinate human superior not in 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 the society (including the superior) is a society political and independent (1863, vol. 1, p. 227 in 1873 edition). And to Austin that sovereign in Britain was, of course, Parliament as a whole. But Parliament as a whole is an extremely legalistic concept, as is immediately apparent when the question is asked: Who receives habitual obedience in Parliament? Can we now say that the prime minister is sovereign? Yes, but then we must add, more explicitly than Hobbes, “while the going is good.” In a word, such power is political and cannot be defined in legalistic terms. For political power to exist at all there must be the potentiality of sovereign power, but a sovereign power constantly exercised appears to be invariably self-defeating.

Austin assumed, like Blackstone before him and A. V. Dicey afterward, that in every government there is a clear place where such absolute power resides. This is plainly false. The example of federal constitutions alone refutes it.

It may be true that federal systems are prone to run into difficulties in times of emergency when they cannot, or cannot readily, summon and assert sovereign power; but it is equally true that the British system does not normally use it. What the concept of the “sovereignty of Parliament” does explain is that there are no possible legal limitations on the sovereignty of Parliament. But this is a very formal matter. What is interesting is not what could be done but what is likely to be done politically. It is not telling much to say that no court or other body can challenge an act of Parliament or a proceeding in Parliament. This led A. V. Dicey to distinguish between “legal” sovereignty, exercised by the Queen-in-Parliament, and “political” sovereignty, exercised by the electorate. The one is what is possible; the other, what is likely. But this distinction is not as helpful as it seems. For plainly Parliament as well as the electorate plays a role in political influence; and everybody (including members of Parliament) forms part of an electorate, which is itself only to be defined in legal terms. The real distinction is between what people may do in legal and in political capacities; but this does not correspond to any precise distinction between institutions like Parliament and the electorate. They are, in fact, linked indissolubly by the political processes of party.

The concept of sovereignty is thus best reserved for the conditional assertion that all governments may face conditions of emergency in which normal constitutional rules have to be set aside if the state is to survive. The theory of sovereignty according to Bodin, Hobbes, and the English positivist lawyers can be given a meaning only as a contradiction to those normal political conditions in which it is recognized—and acted upon—that power is divided and that the business of government is creative conciliation. But this contradiction is at times necessary: it lies in events and not in theory. It has appeared more relevant to some epochs than to others—which accounts for the time of its emergence and its peculiar setting in civil wars. Sovereignty is relevant to emergency situations, as the potentiality of maintaining order in face of clear and present danger, and the justification of emergency powers by which all regimes must find a capacity for decisive, centralized, and, for a time, unquestioned action if a state is to survive. Politics, as Voltaire said of liberty, has no relevance to a city in a state of siege. The practical difficulties of deciding when a state of emergency exists are always great and open to abuse—but they are practical and procedural difficulties; they do not destroy the real distinction between the time of sovereignty and the time of politics.

Bernard Crick

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International Encyclopedia of the Social Sciences