Slike stranica

Political Terms, p. 47, note). "Irresponsibility" does certainly seem in a fuller sense to belong to the elector than to the member of Parliament. Neither is indeed legally responsible for the way in which he uses his right of voting: the "moral" responsibility of the member to his constituents is forcibly brought home to him when a dissolution is at hand, whereas no determinate persons (unless it be landlords or employers who "put on the screw") force his responsibility on the notice of the free and independent elector. There is always a penalty in the former case, but not always (fortunately) in the latter. But the other mark of sovereignty laid down by Lewis is "necessity of consent." On this his editor remarks: "When the sheriff returns a member as duly elected, is it not a public act to which the consent of the electors is necessary"? This seems a rather forced application of the conception, compared with the fact, on which Lewis insists, that the House of Commons must consent to the passing of a law. The electors need not consent in order that the law should be sufficiently a true law to be enforced by a law-court. Thus, one of Lewis's "marks" seems to suit the electors better, and the other, the elected.

This difficulty, and the divergence of view between] Austin and Lewis, force on our attention the fundamental confusion in Austin's apparently clear and precise theory. Recent apologists of the English school of jurisprudence have generally put forward the defence that the sovereign body-in Austin's sense-is the body behind which the lawyer quâ lawyer does not look. Mr. Frederic Harrison has summed up Austin's analysis of sovereignty and law in the two following propositions :

"I. The source of all positive law is that definite sovereign authority which exists in every independent political community and therein exercises de facto the supreme power, being itself unlimited, as a matter of fact, by any limits of positive law.

"II. Law is a command relating to the general conduct of the subjects, to which command such sovereign authority has given legal

obligation by annexing a sanction, or penalty, in case of neglect." (Art. on "The English School of Jurisprudence," Fortnightly Review, vol. xxx. pp. 484, 485.)

Now, if this is to be the interpretation of Austin, if we are only to consider what the sovereign is for the purposes of the lawyer, Austin is quite wrong in going behind the House of Commons to the electorate. For the lawyer qua quâ lawyer a law is good law though it were passed by a Parliament which had abolished the Septennial Act and had gone on sitting as long as the Long Parliament, quite as much as if the law were passed by a newly-summoned parliament, of the elected part of which an overwhelming majority had been returned expressly pledged to vote for this very law. With the wishes or feelings of the electors the lawyer as lawyer has nothing whatever to do, however, much they may affect him as a politician or as a reasonable man. The luminous exposition of this point by Professor Dicey (Law of the Constitution, ed. 3, pp. 68-72) makes it unnecessary to say more. As Professor Dicey points out, Austin's doctrine is "absolutely inconsistent with the validity of the 'Septennial Act." Nothing," he adds, "is more certain than that no English judge ever conceded, or under the present Constitution can concede, that Parliament is in any legal sense a 'trustee for the electors.' (P. 71.)


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If anyone were to object, that our supposition is an impossible one, and to urge that no Parliament, now at least, could prolong its existence indefinitely-nay, that no Parliament now, elected under a Triennial Act, could pass a Septennial Act, without first "going to the country" on that very question, and if we were to ask such an objector "Why"? would not the answer be: "Because the country would not stand it"? That is to say, behind the sovereign which the lawyer recognizes there is another sovereign to whom the legal sovereign must bow. The "legally despotic" sovereign, if that means our "omnipotent" Parliament, is very strictly limited in some ways. It is essen

tial, therefore, to distinguish between the "legal sovereign" and the "ultimate political sovereign." Or, rather, to make the distinction complete at once, let us distinguish (1) the nominal sovereign, (2) the legal, and (3) the political. This distinction would serve to obviate a great many ambiguities. It is no new distinction; but it is to be found formulated in Locke's somewhat cumbrous phraseology in his second Treatise on Civil Government, ch. xiii. §§ 149, 151.

"Though in a constituted commonwealth, standing upon its own basis, and acting according to its own nature-that is, acting for the preservation of the community-there can be but one supreme power, which is the legislative, to which all the rest are and must be subordinate; yet the legislative being only a fiduciary power to act for certain ends, there remains still in the people a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust reposed in them. . . . In some commonwealths, where the legislative is not always in being, and the executive is vested in a single person, who has also a share in the legislative, there that single person, in a very tolerable sense, may also be called supreme, not that he has in himself all the supreme power, which is that of lawmaking, but because he has in him the supreme execution from whom all inferior magistrates derive all their several subordinate powers, or, at least, the greatest part of them; having also no legislative superior 'to him, there being no law to be made without his consent, which cannot be expected should ever subject him to the other part of the legislative, he is properly enough in this sense supreme."

In these passages we have the distinction between what I have called the legal sovereign, the political sovereign, and the nominal sovereign, expressed in a manner applicable to the English Constitution. Locke, it will be observed, does not shirk the verbal paradox of saying that there are three supremes, and yet there is not one supreme. Here at least he makes an analysis of institutions without adopting a method of abstraction which sacrifices truth and convenience to the mere appearance of precise and consistent terminology.

Hobbes, from whom the Austinian conception of sovereignty comes, purposely identifies all the three meanings. of sovereign. I do not wish to deny for a moment the


immense value in political philosophy of the unflinching, though narrow logic of Hobbes. Hobbes's theory of sovereignty is, of course, equally applicable to aristocracies and democracies; but, with regard to England, as is obvious enough from the curious dialogue or rather catechism which goes by the name of Behemoth, his theory may be described as that of a political nominalist, in the sense that he argues from names to things. Because the king of England is called "sovereign," therefore there is no other "legal sovereign"—the Parliamentarian lawyers were only talking what Austin would have called "jargon." That there is no other "political sovereign" Hobbes seeks to prove by his ingenious adaptation of the social contract theory, which in all other political writers had served the purpose of vindicating the right of a people to resist tyrants. Hobbes, like Thrasymachus in Plato's Republic, makes all laws (legal and moral) dependent on the will of a sovereign; in the phraseology of his own theory he allows no natural rights (with the inconsistent exception of the right of preserving one's life) to persist in civil society. If we translate his thought out of the fictions in which it is formulated, the practical lesson which he wishes to teach is this:

There are only two alternatives-a strong government or anarchy. It is better to submit to any kind of authority, however much you dislike it, than to face the worse evils of universal war.

Locke's threefold distinction in the meaning of sovereignty allows him to escape the conclusion of Hobbes, and prepares the way for Rousseau. According to Hobbes, natural rights are transferred to the legal sovereign (and the legal sovereign is identified with the nominal); according to Rousseau, the legal sovereign is only the minister of the sovereign people, to whom the natural rights of each individual are transferred without being lost.1

1 "Trouver une forme d'association qui défende et protégé de toute la force commune la personne et les biens de chaque associé, et par laquelle chacun,

Austin brushes aside the historical use of "sovereignty" for the sovereignty of a prince. The historically true and very convenient phrase "limited monarchy" makes him and his followers almost angry. As we have seen, his apologists generally understand his sovereign in the sense of the legal sovereign; but he himself, by including the electorate in the sovereign of Great Britain, has gone behind the sovereign for the lawyer quâ lawyer. When Austin speaks of the "bulk" of the community being in the "habit" of obedience, he indicates that a vague consent of an indeterminate number of persons is necessary to the real power of the legal sovereign, thus practically recognizing a sovereignty behind the legal sovereign; but Austin will not apply the term sovereign at all except to a determinate number of persons. Now the electorate of Great Britain is certainly a determinate number; but is it true to say that it is solely by the consent of the electorate that the House of Commons has its power? Can we say that Austin has indicated the ultimate political sovereign in Great Britain ? It is, of course, true that the electors have an easy and constitutional way by which to make the members of the House of Commons feel that, though legally irresponsible, they are actually responsible. The electorate has the power of creation and annihilation. It can make a not-M.P. into an M.P., and it can determine that an M.P. shall in future sit-outside the house. But this only represents the constitutional relation of the electorate to the House of Commons. As a matter of fact, can we say that it was to the electorate of the House of Commons that King and Lords gave way in 1832? Even persons who are not electors can always make a riot, and sometimes a revolution. But when we pass outside a body such as the electorate, we are no longer dealing with "determinate persons."

s'unissant à tous, n'obéisse pourtant qu'à lui-même, et reste aussi libre qu'auparavant." Tel est le problème fondamental dont le contrat social donne ia solution. Contr. Soc. I. c. vi.


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