History of the Theory of Sovereignty since Rousseau C. E. Merriam, Jr. Batoche Books Kitchener 2001 First published Columbia University Studies in the Social Sciences: 1900 This edition published by Batoche Books Kitchener, Ontario Canada email: [email protected] ISBN: 1-55273-062-X Contents Preface ............................................................................................... 5 Chapter I: Introduction....................................................................... 5 Chapter II: The Kantian Theory....................................................... 21 Chapter III: The Reactionary Theory of Divine Right. .................... 27 Chapter IV: The Patrimonial Theory ............................................... 33 Chapter V: The Sovereignty of Reason. ........................................... 38 Chapter VI: Popular and State Sovereignty. .................................... 44 Chapter VII: Popular and State Sovereignty (Continued) ................ 62 Chapter VIII: The Austinian Theory ................................................ 66 Chapter IX: Sovereignty and the American Union ........................... 82 Chapter X: Federalism and the Continental Theory. ........................ 95 Chapter XI: Conclusion ..................................................................112 Bibliography .................................................................................. 120 Notes .............................................................................................. 126 Preface The province proper of the following study is the development of the theory of sovereignty from the beginning of the reaction against the principles of the French Revolution. In view of the poverty of English literature on the history of political theory in general, to say nothing of the particular doctrine here discussed, it has been thought advisable, however, to prefix a brief sketch of the theory of sovereignty prior to the period which is the special subject of this investigation. The writer wishes to acknowledge his indebtedness to Professor Gierke, of Berlin, from whose works, lectures, and personal counsel he has obtained invaluable assistance; to Professor Burgess, of Columbia, whose doctrine of sovereignty first stimulated interest in the present study; and, above all, to Professor Dunning of the Department of Politi- cal Philosophy in Columbia, under whose direction all of the writer’s work in the field of political theory has been conducted. Chapter I. Introduction. The beginnings of the theory of sovereignty are found in Aristotle’s Politics, and the classic body of the Roman Law. In the Politics there is a recognition of the fact that there must be a supreme power existing in the state, and that this power may be in the hands of one, or a few, or of many.1 In Chapter II, of Book III, appears a justification of the rule of the many, fairly expressed in the statement that “the principle that the multitude ought to be supreme rather than the few best is capable of a satisfactory explanation, and though not free from difficulty, yet seems to contain an element of truth.”2 6/C. E. Merriam, Jr. Among the Romans the idea of sovereignty found its clearest ex- pression in the well-known sentence, “The will of the Prince has the force of law, since the people have transferred to him all their right and power.”3 The renewed interest in the Roman Law in the 12th century, and the study of the newly discovered works of Aristotle in the 13th, furnished the fundamental propositions in the discussion of the theory of sover- eignty, to which the struggle between Church and State gave rise. The Empire, asserting the juristic continuity of the Roman State, and claim- ing for its present head the attributes of the earlier Emperors, found in the same body of law which declared the ruler legibus solutus, the doc- trine that the source of this authority was the Roman people. Hence the idea of original popular sovereignty could not be successfully contested by the State.4 The Church, at first, under the influence of Augustine, declared through Gregory VII the State (and with it the sovereignty) to be the work of sin and the evil one. Later under the spell of “the Philoso- pher” Aristotle, Saint Thomas Aquinas taught that the supreme power arose from a purely human foundation — namely, the act of the people, in contrast to the God-established church.5 The authority of the Pope, it was maintained, came directly from God; that of the Emperor from the consent of the people and the cooperation of the Church Still later the popular argument spread from State to Church, and was used against the supremacy of the Pope himself in the great conciliar controversy.6 So universally prevalent was the idea of original popular sovereignty that “from the end of the 13th century it was an axiom of political theory that the justification of all government lay in the voluntary submission of the community ruled.”7 Government based on the consent of the gov- erned was the ruling theory in the Middle Ages. The conception of sovereignty, however, failed to attain a high de- gree of development in respect either to the essential nature and attributes of the supreme power, or to the location. A strong doctrine on the nature of sovereignty was hindered, theoretically, by the prevalent idea of the dominance of divine and natural over positive law, and by the idea of the so-called mixed form of state; politically by the conflict between Church and State and by the feudal condition prevalent within the State itself. The bearer of the sovereignty was declared to be the “people” (populus), but by people was understood, in spite of the frequent and sometimes striking analogies with physical organisms, nothing more than the mass of the subjects. The unfolding of a complete theory awaited the develop- History of the Theory of Sovereignty Since Rousseau/7 ment of the national State.8 The first systematic discussion of the nature of sovereignty was made in France by Jean Bodin. His native land was then passing out of the last stages of feudalism, through the convulsion of civil war, into the form of a centralized state.9 Bodin was an adherent of the nationalist party (les Politiques) which placed the interests of the State above reli- gious or personal considerations. Reflecting the spirit of his party and the political conditions of his time, Bodin, in his masterly work On the Commonwealth,10 became the framer of the theory of sovereignty upon which the French monarchy was to rest; upon which, in fact, modern political science was to build.11 Bodin starts with a definition of sovereignty (souveraineté, supreme potestas) as “The absolute and perpetual power of a commonwealth (la puissance absolue et perpetuelle d une République), or in the later Latin edition, “The supreme power over citizens and subjects, unrestrained by law (supreme potestas in cives ac subditos, legibus solute). Sover- eignty is the central fact in Bodin’s political theory; on it depends the definition of citizenship, the classification of forms of state, the identity of the state; it is indeed the essential and vital element in the common- wealth.12 What then is the nature of the supreme power as conceived by Bodin? It is in the first place absolute, in that it is wholly free from the restraint of law, and is held subject to no conditions or limitations.13 Indeed the very definition of law is the “command of a sovereign using his sover- eign power.”14 The sovereign must be wholly independent of any higher law-giver. Bodin enumerates nine degrees of subjection, and declares that “ none but he is absolute who holds nothing of another man.” The supreme power is moreover unlimited in time, perpetual. Hence such officers as the Roman Dictators and Greek Archons were not truly sovereign, because their authority was for a limited period only. “Per- petual” is not, however, to be too broadly taken, and signifies properly for the life of the person who holds it (“pour la vie de celui qui a la puissance.”)15 Sovereignty is, further, indivisible in its nature; there can- not be two supreme powers.16 It is, moreover, imprescriptible and hence cannot be effaced by the mere lapse of time.17 As to the alienability of the sovereignty the statements of Bodin are confused. In the desire to protect the sovereign he declares that none of his rights can be in any way alienated.18 But to avoid the argument for popular sovereignty, he asserts that the people may surrender their supreme power without any 8/C. E. Merriam, Jr. conditions whatever, so that it passes completely out of their control.19 And finally to the aid of this abstract conception of sovereignty, comes an enumeration of nine definite rights which are the nine marks charac- teristic of its possession.20 Of these the foremost is that to which refer- ence has already been made, namely the power of “giving laws to the subjects in general without their consent.” Strongly stated as the idea of sovereignty was by Bodin, there were, nevertheless, certain limitations upon its absoluteness, some consciously, others unwittingly introduced. He by no means desired that the sover- eign should be freed from obligation to any and all law, but, on the contrary, expressly declares that every ruler in the world is subject to the laws of God, of nature, and of nations.21 Less clearly outlined, but none the less omnipresent and insuperable, are the “leges imperil,” the vaguely defined laws of the kingdom, which no sovereign can break through.22 Thus the Salic law cannot