Chapter VII: Questions Regarding Sovereignty Liable to Be Confounded

In most of the speculations of the school which traces its origin to Hobbes, and indeed in some of Hobbes’ critics also, there would seem to be a confusion of two or more of six different things, viz.:—

1. The conception and definition of legal supremacy.

2. The conception of practical mastery.

3. The historical question as to the origin of the notion of Legal
Right.

4. The historical question as to the origin of organized political
communities in general, and of the habit of obedience therein.

5. The moral obligation on the members of a State to render obedience
to the authorities within it, whether those authorities rule by law
or by force.

6. The moral obligations which bind the holder of power, whether _de
iure_ or _de facto_.

In the hands of Bentham, whom Austin follows, the two last-mentioned confusions, which exercised men’s minds in the days of Hobbes and Locke, have disappeared. Bentham has seen, and has stated with admirable clearness, the line which divides the province of morality from that of legal obligation.

But he has mixed up the other four, and especially the first two—for it is rather by implication than by express words that his writings cover the questions of the historical origin of Right and of the State—in a way that has clouded the mind of many a student since his time, and has in particular produced two capital errors, that of regarding Law as primarily and normally a command, which it certainly was not at first and is only partially now, and that of denying the legal quality of Customary Law, which has been in all countries the most fertile, and is still in some practically the only source of law. This confusion seems to have been due mainly to two causes. One is the omission of the followers of Hobbes to pay any regard to the history of States and Governments, and to perceive that in many stages of their growth the definitions which may suit a normal modern State are quite inapplicable. The other is the attempt to find concise and summary definitions and descriptions which will suit all modern States generally, whatever their diversities from one another, or (to put the same thing in a different form) the habit of arbitrarily assuming one kind of modern State to be the normal State, even though the trend of recent tendency may be away from that type. The remark of Bacon, that men are prone to assume a greater uniformity in Nature than in fact exists, and to conceal real distinctions under identical nomenclature, finds an application in the moral and political sciences as well as in the sciences we call physical. This besetting sin of those who frame logical classifications upon the basis of abstract notions has led the so-called Analytic School of jurists sometimes to ignore the most material facts, sometimes to twist their definitions into a sense far removed from the natural meaning of the words they use.

The truth seems to be that the difficulties which have been supposed to surround the subject of Sovereignty are largely factitious difficulties, and spring from the attempts made to answer questions essentially different by the same terms. Had the qualifying terms _de iure_ or _de facto_ been added every time the word ‘Sovereignty’ was used, most of these difficulties would have disappeared. If we take the six questions just stated, and examine each by itself, there will be nowadays no great conflict of opinion as to the answer which each ought to receive.

Questions 1 and 2 have been already dealt with. When the qualification _de iure_ or _de facto_, as the case may be, is in each case added, there need be no more mystery about either of them.

As regards 3 and 4, _i.e._ the origin of political power, whether _de facto_ or _de iure_, the reply of history is unequivocal. There never was and never could have been any social contract in the sense either of Hobbes or of Rousseau or of any of the other philosophers who have discovered in such a fact the foundation of organized society. Political communities, as every one will now admit, grew up of themselves under the influence of the needs of common defence, of religious belief, of habit, of the aggregative and imitative instincts of mankind. Law grew out of custom, and showed itself first, in most races, in the form of rules for the settlement of disputes, whether regarding property or regarding the compensation to be made for murder or other personal injury. It cannot be said that (as a general rule) authority based on physical force, the form in which Sovereignty _de facto_ is commonly supposed to have begun, preceded authority _de iure_, for the two have usually grown up together, custom having in it an element of fear and an element of moral deference; and in this growth physical force has played no such predominant part as the school of Hobbes and Austin assign to it. Just as in the case of each individual man the most important, if not the largest part of his knowledge is that which he acquired in the semi-conscious years of childhood, so the chief part of the work of forming political societies was done by tribes and small city communities before they began to be conscious that they were forming institutions under which to live: and the leading conceptions of law and procedure were definite and potent before the beginnings of that direct legislation by a Sovereign which is now represented as the normal action of an organized political body. Nor is the power of the community as a whole, apart from its titular Sovereign or its representative organs, extinct to-day. It survives in the vague but irresistible force of public opinion which controls all those organs.

When we come to the two last of the above questions (5 and 6) we find that a sharp distinction between Legal Sovereignty and Practical Mastery makes it easier to solve the problems they raise. Obedience to a ruler who is Sovereign only _de facto_ and not also _de iure_ is not now deemed a duty, unless the ruler _de iure_ be powerless, or cannot be ascertained, in which cases it may be for the general good that the actual holder of power, even unlawfully obtained, should be supported as against anarchy or the prospect of civil war. But to our minds power _de facto_, apart from legal sanction, carries no title to respect. When it is abused, the good citizen not only may but ought to resist it.

With the Sovereign _de iure_ the case is different. He has a _prima facie_ claim to obedience, which can be rebutted or disregarded only in one of three events, (_a_) if he has lost _de facto_ power, and is therefore unable to perform a Sovereign’s duties, (_b_) if he has, in a State where his powers are limited, himself so gravely transgressed the constitution or laws as either legally or morally to forfeit his Sovereignty, (_c_) if in a State where his powers are not limited by the Constitution he has so abused his legal power as to become in fact a Tyrant, a foe to the objects of peace, security, and justice, for which government exists. In each of these cases it would be now generally held that the citizen is absolved from his allegiance, and that the sacred right of insurrection which the French of the Revolution and their friend Jefferson so highly prized must come into play. In case (_b_) the proper course would seem to be to resist the _de iure_ Sovereign by constitutional means, so far as they will go, and only in the last resort by force. If his transgressions have gone so far as to work forfeiture of his legal rights, he is of course no longer Sovereign _de iure_. In case (_c_), where no constitutional remedy exists, the formerly _de iure_ ruler, since he has made himself a mere Tyrant or ruler against law, has created a state of war between himself and the citizens, and opposition to him becomes (as in the case of the mere _de facto_ tyrant) a duty which is of stronger or weaker obligation according to the greater or less enormity of his offences, and the greater or less prospect of success in such opposition.

As respects the moral restraints by which the Sovereign, whether _de facto_ or _de iure_, ought to hold himself bound, few will now dispute that they are substantially the same as those which bind an individual man in the ordinary relations of human life. Each must use his power in accordance with the general principles of justice and honour, regarding actual power as a trust from Divine Providence, and legal power as a trust from the community also. Only in a single point would it seem that there may be a difference, though one whose limits are difficult to fix in practice, between the moral duty of a Sovereign and that of an individual good citizen. Both are equally bound to strict justice, strict good faith, strict avoidance of cruelty, or even unnecessary harshness. But while the individual ought often to be not merely just but also generous, since it is only his own resources which generosity will impair, it is suggested that the Sovereign has no right to be generous out of the resources of the community for which he is only a trustee. Similarly, while the good man may risk his own life to save the lives of others, the ruler must not risk the life of the community, because he has not been entrusted with any such power. To this it has been answered that the Sovereign is entitled to assume that the community ought to desire and will desire that its powers should be exercised in the best and highest spirit for the good of its members and of the world, and that he may upon this assumption do everything which a high-minded community would do were it consulted. The question, though seldom a practical one, is both interesting and difficult, for even if the analogy of trusteeship be admitted, there is room for much controversy as to the application of the principle in each particular case.

Some few publicists have argued that the Sovereign Power in a State is entirely discharged from all moral obligations when it is a question of preserving the existence of the State itself, and that violence, injustice, and bad faith then become legitimate expedients. In reply to such a detestable doctrine, it is enough to observe (first) that as the Sovereign would be himself the judge of what does involve the life of the State, he would be sure to abuse his freedom from moral ties in cases where the supposed justification did not really arise, and that thus all confidence of one nation in the good faith of another would be destroyed, and (secondly) that the argument must go so far as to put the claim of a State to preserve its collective existence higher than that of the individual to preserve himself from death, for no one will contend that an individual is justified in killing another man (except of course in self-defence) or bringing a false charge against him, for the sake of saving his own life.

This question need not be pursued, because it lies rather outside the particular subject with which we are here concerned. But a few words may fitly be said regarding the bearing of the distinction between that which exists _de iure_ and that which exists _de facto_ on the questions that have arisen regarding Sovereignty in the international sphere.