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The Intermittent Sovereign

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The Intermittent Sovereign THE INTERMITTENT SOVEREIGN I MAX RADIN It is impossible to escape from Austin, or rather from Aristotle, for the whole history of Western civilization is saturated with the concept of the state or community as composed of one part which gives commands and another which obeys them. Few people have held that all states were in fact so organized or that the existing states were developed in order to effectuate this concept. But most of those who have seriously thought about state organization have thought about it in these terms and a good deal of our state machinery has been formed under the influence of people who were trained to think so. And again since Aristotle, a favorite way of classifying states has been on a quantitative basis in respect of those who issued commands. This power might be wielded by one person or a few persons or a great many persons and the state was in con- sequence a monarchy, an oligarchy, or a democracy. Plainly that is not the only way in which classification might be made. Instead of how many wielded this power, we might first of all ask what kind of persons, where they came from, and how they were selected. Or we might have in mind the purposes for which the power was exercised. All these classifications have in fact been used to some extent at different times. But however classified, the prevailing idea has nearly always been that the state is based on authority, that .its essential characteristic is the fact that, somewhere, some place, there are people who give orders and others who obey them. The quality of these persons, that which makes them what they are, was deemed to be well expressed by the term "sovereignty," a word of feudal origin-and still better, perhaps, by the Latin maiestas which declares in its obvious etymology what publicists have attempted to set forth in abstract and complicated sen- tences. Those who have naiestas are the mightier ones, they have the greater power; and the chief of state offenses--the only real offense against the sovereign-is an attempt to lessen this power--minuere maiestatem. That there were states in which it was doubtful just who had maiestas, states in which it was disputed, states in which maiestas alternated-all this was familiar and commonplace. Indeed several centuries of West-Eurqpean history were taken up with violent and not unsanguinary controversies as to where the ultimate sovereignty, the real inaiestas, lay. But until THE INTERMITTENT SOVEREIGN 515 recently no doubt arose as to whether anybody" had it at all; nor was it conceivable that sovereignty might sometimes be and sometimes not be. And while joint possession of sovereignty was no difficult concept, simultaneous possession of it by un- related persons or groups was not merely a difficult, but an ap- parently sef-contradictory and so non-existent notion. This has of course changed in quite modern times and there are several publicists and jurists who have subjected the idea of sovereignty to a literally exhaustive analysis and have de- clared that it has not survived. No sovereignty at all, multiple sovereignty, are freely canvassed possibilities and the state as the embodiment of sovereignty has been found to be an epi- phenomenon, something supervening upon a completely organ- ized community and in no sense essential to its organization It is evident that there is no logical necessity of implying sovereignty in the mere fact of human organization. To the common and ancient assertion, "Some persons must command and some must obey," the modern reply may w6l be "Why?" It is not a fact observed in nature. In any given territory animals of all kinds live and move about, eating and being eaten, and often doing neither one nor the othei, but seeking their food simultaneously and, if there is enough of it, without inter- ference by each other. Nor is there any logical necessity that all elements of a community must be organized on this basis. We do not feel impelled to refer all the points in a limited space to one and only one system of coordinates. We have as many systems as we like and we may have some of such special sorts that many points will escape reference altogether. Outside of a revealed and divine behest establishing earthly sovereignty as the type and example of Divine sovereignty-a behest in which Christian Europe devoutly believed-sovereignty could, one might suppose, be established as a necessary element in a state only by a process of induction, by noting that it was to be found wherever a group of men were discovered in more or less permanent cohabitation. Aristotle doubtless felt that he had reached his conclusion by some such induction. Our much greater knowledge enables us to On so canvassed a topic, it will hardly be necessary to burden the :reader with too many notes. Two very recent books will give any one a complete orientation concerning the present state of the issues. One is the little manual of JOAD, INTMODUCTION TO MODERN POLITIL THEOnRy (1924), in which far the greater stress is laid on 'what might be called socialistic movements. Mr. Joad does not think that theories -vhich oppose the individual and the state have much of an air of actuality. The other is ELmo, THE PRAGmC REvoLT iN PoLiTics (1928), which seeks to demonstrate that the ghosts of T. H. Green and Bosauquet are imperfectly laid even by such powerful exorcists as Duguit and Laski. YALE LAW JOURNAL [Vol. 83D assert that his induction, extensive as it was, was quite incomplete. Tribes have often been met with in which, with the best will in the world, we cannot find any person who gives commands and others who obey. And if we save ourselves by declaring that such groups are not states, we have obviously begged the ques- tion. No observation has told us this fact but merely a pre- determined principle. Supporters of sovereignty might grant all this and still rhain- tain their chief point. Even if sovereignty is not an inherent element in the concept of the state, they might hold that it has been such an element in those states which in historical times were developed around the Mediterranean basin-especially the East-Mediterranean, and their lineal descendants. The states which most concern us, those in which we live, are among these descendants and wherever and however sovereignty developed it has, it might be urged, continuously appeared in all forms of the state with which we are familiar. It would be legitimate, in fact, to use the term "state," civitas, polis-a term developed within this group of historical communities--solely to describe them, and to say of the 'communities organized on different schemes, that whatever they were, they were not states. We should run little practical danger in doing so, because the present members of the communities descended from the lXedi- terranean state are much the most successful peoples of today, and their form of organization is quite sure to be imitated by the most energetic of non-Mediterranean nations. But as a matter of fact, the defenders of sovereignty are dis- inclined to rest their theory on mere history. The question is not whether certain impotant communities have been so or- ganized but whether all communities can be readily analyzed into this bipartite scheme of sovereign and subject, and if they can be, whether it serves any purpose so to analyze them. This purpose, for Austinians and quasi-Austinians, is to have a definite and clear source of law in the strict sense of that ex- pression, law thus being what the sovereign commands or toler- ates or at any rate does not forbid. It is hard to see what institution or activity in any society can escape being in some one of the three groups mentioned. Those who have opposed Austin have done so by stressing the term "command," as they were quite justified in doing by Austin's own practice. Evidently there are thousands of activi- ties and thousands of rules of conduct which have never been actually commanded by any discernible human being and are not now commanded in any rational use of that word. If Austin meant command as a continuing fiat, it would be idle to include in it our semi-instinctive social habits most of which, in the rare cases in which they must be legally described, turn out THE INTERMITTENT SOVEREIGN to be lawful. We do not do these lawful things because they have been commanded since usually we never knew they had been commanded and for thousands of them we cannot discover when and under what circumstances they were fi-st commanded. If we assert that what the sovereign does not forbid he commands, that is obviously a strained use of the term. We should not so use the word in other associations. In the related field of morals we find it hard to say that all that is not good is evil. It is convenient to have a neutral ground, a place for indifferent things which will neither accelerate nor retard our salvation but which may in fact occupy a great deal of our time. Even the Stoics with their inhuman paradox of the equality of all sins had a no-man's land where a sage might safely, even if not philosophically, breathe an atmosphere of acidplwra. And we run the risk of making the sovereign look rather foolish. It is a characteristic of weak executives that they hasten to take credit for what they could not prevent and in the vast range of activities which the Austinian sovereign has commanded because he has not forbidden them we wonder how many of them he has not dared to forbid.
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