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'HE conception of political sovereignty is
one of those interesting portions of doctrine which belong in common to several distinct branches of study. No systematic discussion of any part of the science of politics can advance very far without it; and it is even more indispensable to the student of legal systems than to the student of politics. It is a question central to the life of states and to the validity of law.
And it is rendered the more interesting by the fact that it is a critical question, used by all schools alike as a capital test of orthodoxy. No man who cares a whit about his standing among students of law or of politics can afford to approach it lightly. Whatever he says about it he must needs say with a profound sense of responsibility. He must undertake the discussion of it with the same sort of gravity, with the same deep sense of personal risk, that the political economist evinces when he ventures an opinion about Value or hazards a theory of
Distribution. When once he has committed himself to an opinion concerning it, he may be sure that with a large and influential number of his fellow-students he can never thereafter pass for a man of undoubted scholarship or unclouded sense.
If it is awkward, under such circumstances, that the conception should be so indispensable, it doubtless has the advantage of forcing boldness upon us. If for nothing else than for the sake of a modus vivendi, we must out with whatever notion it is that we have accepted or invented with reference to the nature and lodgement of sovereignty. It is, on the whole, safer to be explicit than to hedge.
And yet it is not easy to be explicit; for there are no suitable terms to be explicit with. One no sooner begins to examine the field and the matter of controversy than he begins to suspect that it is all a question of terminology. After being hurried in bewilderment through one of Browning's short poems without being permitted to be quite sure at any point of the full meaning, we are led in our disappointment to wonder, with Mr. Birrell, if it can be the punctuation. In what we read of sovereignty we are led to wonder if it can be the words that confuse us. It must be evident to every one who has not been sophisticated by the terms themselves, or committed beyond retrieval by
the controversial use of them, that when, for example, the people of the United States and the Czar of Russia are put together in the same class as sovereigns, language has been forced to a very artificial use, and one term made to cover radically different things. There is clearly a striking contrast between these two sovereigns in character, in method, and in power. Doubtless an excellent way by which to enter our subject would be through an examination of this difference. But another way is more direct.
Let us begin with an accepted definition of sovereignty. It is both decent and convenient to take that of Austin, that celebrated definition which he received through Bentham from Hobbes. Austin conceived a sovereign very concretely, as a person or body of persons existing in an independent political society and accorded the habitual obedience of the bulk of the members of that society, while itself subordinate to no political superior. Law he defined to be the explicit or implicit command of such a person or body of persons, addressed to the members of the community, its inferiors or subjects. He took it for granted that in every independent community supreme political authority did actually vest in some such determinate sovereign person or body of persons. By the very term used to describe it, more
over, this sovereignty is supremacy—is subject to no limitation. Every law is a command, not only, but the command of a supreme authority; and it would be a singular contradiction in terms to speak of this supreme power as limited by law. How can the supreme author of law within a state himself be subject to law: how can the creature bind the creator? How can one refrain from smiling at the logical incapacity of those who speak of limitations to sovereignty, or, more absurdly still, of divisions of sovereignty? Is there a hierarchy of supremacies: can there be a co-ordination of creators?
Austin had studied in Bonn while it was the residence of such men as Niebuhr, Schlegel, Arndt, Welcher, Mackeldey, and Heffter, and at a period when controversy touching some of the fundamental questions concerning the province and method of jurisprudence was in its keen youth. His thought was mature, indeed, before he went abroad, and nature had very imperatively commanded of what sort that thought should be by giving him a mind framed for abstract conception and sharp logical processes; but contact with German thinking contributed many important elements to his mental equipment. Thibaut became scarcely less his master than Bentham. It was inevitable that it should be Thibaut rather than Savigny. Savigny believed that all law
was rooted in old habit, and that legislation could modify law successfully and beneficially only by consenting to the secondary rôle of supplementing, formulating, or at most guiding custom. He was at weapons drawn with the school of Thibaut, which proposed to lay legislative hands on the entire body of German law, make a code which should be common to all the German States, and so help to make Germany a national unit. To attempt thus to systematize law, where by natural development it was unsystematic, seemed to Savigny a deliberate effort to render it artificial. Law, he maintained, did not often grow into a logical system, but was the product of daily accretions of habit and sluggish formations of thought, which followed no system of philosophy. It was not the business of legal science to force it into logical categories; it was its function, rather, to give a clear explanation of the principles and order of its life and a satisfactory working analysis of its several parts and conceptions. Thibaut, on the other hand, believed it to be the legitimate function of the jurist to make piecemeal law up into organic wholes, rendering it clear where it had been obscure, correcting its inconsistencies, trimming away its irregularities, reducing the number of its exceptional provisions, discovering and filling in its gaps, running it through with threads of system,