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that higher, constituent law which is set above sovereignty, which expresses the restrictions set about the exercise of sovereign authority. Such restrictions exist in all states, but they are given definite formulation only in some. As for the Executive, that is the agent, not the organ, of sovereignty.
But, even if it be comparatively easy thus to fix upon the organs of sovereignty in a unitary state, what shall we say of a federal state? How apply our analysis to that? One is tempted to declare, with Dr. Merkel, of Strassburg, that federal states give direct contradiction of fact to prevailing theories respecting the necessity for unity of power, indivisibility of sovereignty. Here, as he says, we have organs and authorities in possession of powers exclusively their own, for the furtherance of functions necessary to the ends of the state as a whole, existing side by side with organs also in full possession of powers exclusively their own, for the furtherance of the local and special functions of the member states. We know, moreover, that these two sets of organs are in fact co-ordinate; that the powers of the states were not derived from the federal authority, were even antecedent to the powers of the federal government, and historically quite independent of them. And yet no one who ponders either the life or the formal structure of a
federal state can fail to perceive that there is, after all, an essential unity in it, the virtual creaton of a central sovereignty. The constituent act—the manner in which the government was created-can, I conceive, have nothing to do with our analysis in this matter. The way in which the federal state came into existence is immaterial to the question of sovereignty within it after it has been created. Originative life and action, the characteristic attributes of sovereignty, come after that. Character and choice are postponed to birth, sovereignty to the creation of the body politic. The constituent act creates a thing capable of exercising sovereignty. After the creative law has done its part, by whatever process, then the functions of independent life begin. Thereafter, in all federal states, even the amendment of the fundamental law becomes an organic act, depending, practically without exception, upon the initiative of the chief originative organ of the federal state. Confederations are here out of the question. They are, of course, associations of sovereigns. In the federal state self-determination with respect to their law as a whole has been lost by the member states. They cannot extend, they cannot even determine, their own powers conclusively without appeal to the federal authorities. They are unquestionably subject to a political superior. They are fused, subordi
nated, superior. Though they do not exercise their powers by virtue of delegation, though their powers are indeed inherent and in a very important sense independent, they are yet inferior to a body whose own powers are in reality self-determined, however much that self-determination may be hedged about and clogged by the forms of the fundamental federal law. They are still states, because their powers are original and inherent, not derivative; because their political rights are not also legal duties; and because they can apply to their commands the full imperative sanctions of law. But their sphere is limited by the presiding and sovereign powers of a state superordinated to them, the extent of whose authority is determined, under constitutional forms and guarantees, by itself. They have dominion; but it has sovereignty. For with the federal state lie the highest powers of originative legal determination, the ultimate authority to warrant change and sanction jurisdiction.
Our thought is embarrassed throughout such an analysis by the very fact which invalidates the Austinian conception and makes a fresh analysis necessary. Very little law literally originates in command, though its formulation and enforcement must unquestionably be effected through the commanding authorities of the state. It is their function to direct, to lead,
rather than to command. They originate forms, but they do not discover principles. In a very profound sense law proceeds from the community. It is the result of its undeliberate as well as of its deliberate developments, of its struggles, class against class, interest against interest, and of its compromises and adjustments of opinion. It follows, slowly, its ethical judgments, more promptly its material necessities. But law issues thus from the body of the community only in vague and inchoate form. It must be taken out of the sphere of voluntary and uncertain action and made precise and invariable. It becomes positive law by receiving definition and being backed by an active and recognized power within the state. The sovereign organ of a state is, therefore, very properly said to be its law-making organ. It transmutes selected tendencies into stiff and urgent rules. It exercises a sovereign choice in so doing. It determines which tendencies shall be accepted, which checked and denied efficacy. It forms the purposes of the state, avoiding revolution if it form them wisely and with a true insight. This is sovereignty:—to sit at the helm and steer, marking out such free courses for the stanch craft as wind and weather will permit. This is the only sort of sovereignty that can be exercised in human affairs. But the pilot is sovereign, and not the weather.