« PředchozíPokračovat »
some general statement of the correlation of forces, he would hardly be conceived to have done physics a service. If in our study of anatomy we should turn away from structural adjustment and functional force to take account of the thousand and one influences which in individual cases affect the organs from without, we should obviously be abandoning the science itself. It seems to me that we do a very like thing if, in studying the structural forces and organic actions of society, its organs of origination and command, its organs of execution, its superior and its subordinate authorities, its habitual modes of structural life, we abandon all attempts at differentiation, throw all analysis into hotch-potch, and reduce everything to terms of the general forces which mould and govern society as a whole. We confuse our thought in our effort to simplify it. We lose, we do not gain, by putting powers of radically different sorts together into the same categories, and driving them abreast, as if they pulled together, in the same propositions.
There is no unlimited power, except the sum of all powers. Our legal theorists have sought unlimited sovereignty by a process of summation; have made it consist in the combined forces of the community. Sovereignty, if it be a definite and separable thing at all, is not unlimited power; is not identical with the
powers of the community. It is not the general vitality of the organism, but the specific originative power of certain organs. Sovereigns have always been subject in greater or less degree to the community; have always been organs of the state; have never been the state itself. But they have been sovereigns none the less; they, and not the community over which they presided.
It is necessary, if there is to be any clear thinking at all upon this subject, to distinguish very sharply two radically different things; namely, the powers and processes of governing, on the one hand, from the relations of the people to those powers and processes, on the other. Those relations are relations of assent and obedience; and the degree of assent and obedience marks in every case the limits, that is, the sphere, of sovereignty. Sovereignty is the daily operative power of framing and giving efficacy to laws. It is the originative, directive, governing power. It lives; it plans; it executes. It is the organic origination by the state of its law and policy; and the sovereign power is the highest originative organ of the state. It is none the less sovereign because it must be observant of the preferences of those whom it governs. The obedience of the subject has always limited the power of the sovereign. “The Eastern politicians never do anything,”
says Burke, “without the opinion of the astrologers on the fortunate moment. ... Statesmen of a more judicious prescience look for the fortunate moment too; but they seek it, not in the conjunctions and oppositions of planets, but in the conjunctions and oppositions of men and things." This is the covert admission of the Austinian definition itself: the sovereign power is that to which “the bulk of the community is habitually obedient.” When we discuss, with Mr. Sidgwick, the influences which tell upon the action of the originative organs of the state, we are not discussing sovereignty, but the natural and universal limitations of sovereignty, the structural checks and balances of the organism. There is no hope for theory if we neglect these obvious distinctions.
At all times and under all systems there have been two sets of phenomena visible in government: the phenomena of command and the phenomena of obedience, the phenomena of governing and the phenomena of being governed. Obedience, moreover, is not always an automatic or unconscious thing. It is a submission of the will-an acquiescence which is the product either of choice, of necessity, or of habit. This has been observed from the first; was observed by Bodin, from whom we get our word sovereignty, and much of our conception of the thing, sovereignty. He perceived that the
supremacy of the sovereign-even of the mediæval French sovereign before his eyeswas in fact limited, the frontiers of sovereignty being marked by certain antecedent rights, by divers established prerogatives of property and vested privilege--not a scientific, but a natural frontier, lying along the old mountains of habit, the well-known rivers of precedent.
We know that the history of politics has been the history of liberty; a history of the enlargement of the sphere of independent individual action at the expense of the sphere of dictatorial authority. It has revealed a process of differentiation. Certain freedoms of opinion and utterance, of choice of occupation and of allegiance, of fair trial and equitable condemnation, have been blocked out as inviolable territories, lying quite beyond the jurisdiction of political sovereignty. Beginning with that singular and interesting order of the classical states of the ancient world, under which the individual was merged in the community and liberty became identical with a share in the exercise of the public power, we witness something like a gradual disintegration, a resolution of the state into its constituent elements, until at length those who govern and those who are governed are no longer one and the same, but stand face to face treating with one another, agreeing upon terms of command and obedience, as at Runny
mede. Conditions of submission have been contested, and, as liberty has gained upon authority, have been jealously formulated. The procedure and the prerogatives of authority have been agreed upon; liberty has encroached upon sovereignty and set bounds to it. The process is old; only some of its results are new. What both political philosophers and political revolutionists have sought for time out of mind has been a final definition for that part of the Austinian conception which concerns the habitual obedience of the community. These definitions, in their practical shape as institutions, we now call constitutions. At last peoples have become conscious of their relations to the highest powers of the state, and have sought to give permanence and certainty to those relations by setting the conditions of their subordination fast in stubborn practices or in the solemn covenants of written documents. A constitution government has always had; but not until this latest age these deliberate formulations of principle and practice which determine the whole organization and action of the State, the domain of authority, the neutral territory of liberty, the postulates of obedience.
Constitutions are definitive rather than creative. They sum up experiences. They register consents. Assuredly Mr. Spencer is right when he declares that that which in every country,