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Political Science and the Juristic Point of View

Published online by Cambridge University Press:  01 August 2014

George H. Sabine
George H. Sabine*
Affiliation:
Ohio State University
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Extract

In the August, 1926, number of this journal, Professor W. W. Willoughby presented some conclusions regarding the conception of sovereignty and the range of its applicability in political science, together with some interesting suggestions for the clarification of political theory. His article is devoted primarily to an exposition and criticism of the juristic theories of Professor H. Krabbe, and the gist of his criticism is that Krabbe, in common with the translators of his Modern Theory of the State and with Duguit, fails to distinguish between ethical and legal validity. Krabbe's attack upon the conception of sovereignty is therefore due to a confusion: The legal supremacy which the analytical jurist attributes to the state for purely legal purposes is taken as including also an assertion of moral supremacy. Accordingly, the fact that a legally valid law may be criticized as opposed to moral sentiment or to public interest is turned into an objection against the view that the state, for juristic purposes, may be regarded as a legally sovereign will. Professor Willoughby implies that clarity can be introduced into the whole discussion simply by avoiding this confusion. The justice or utility of a law is a wholly proper question for the moralist, but it is quite irrelevant to the juristic problem, which concerns merely the legal competence of the agency enacting or enforcing the law. “We find in Krabbe, and also in his translators, …. that same mistaken idea which is to be discovered in Duguit, that an inquiry into the idealistic or utilitarian validity of law, as determined by its substantive provisions and purposes sought to be achieved by its enforcement, has a relevancy to, and that its conclusions can affect, the validity and usefulness of the purely formalistic concepts which the positive or analytic jurist employs.”

Type
Research Article
Information
American Political Science Review , Volume 22 , Issue 3 , August 1928 , pp. 553 - 575
Copyright
Copyright © American Political Science Association 1928

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References

1 American Political Science Review, Vol. XX (1926), p. 510Google Scholar. On p. 522 the omission of a number of words has completely changed the meaning of a quotation from the translators' Introduction to Krabbe's book, though it does not appear that Professor Willoughby has mistaken the writers' meaning.

2 Ibid., p. 521.

3 That this was the ancient view seems clear from the fact that the orators frequently addressed the jury as “Athenians,” and also that the decision of the court was conceived as equally binding with a vote of the ecclesia. See Busolt, , Griechische Staatskunde (1926), pp. 1150 ff.Google Scholar

4 For a description of this form of action see Vinogradoff, , Historical Jurisprudence, Vol. II (1922), pp. 138 ff.Google Scholar; for other passages see the index, s.v. graphe paranomon.

5 Larsen, J. A. O., “Representative Government in the Panhellenic Leagues,” Classical Philology, Vol. XX (1925), pp. 313 ff.CrossRefGoogle Scholar; Vol. XX I (1926), pp. 52 ff., and especially pp. 68 ff.

6 De republica, Lib. I, cap. x. It is true that Bodin wrote before the method described had crystallized. The author of the Methodus ad facilem historiarum cognitionem was certainly not exclusively a rationalist in jurisprudence, nor is the author of the Démonomanie a representative of the enlightenment. On the other hand, his extraordinary treatment of dogmatic theology in the Colloquium heptaplomeres is quite in the spirit of the eighteenth century. See Franck, Ad., Réformateurs et publicistes de l'Europe, moyen age, renaissance, pp. 395 ff.Google Scholar

7 Leviathan, Ch. 18.

8 See Bouché-Leclercq, , Manuel des institutions romaines (1886), pp. 40 ff.Google ScholarGreenidge, , Roman Public Life (1901), pp. 146 ff.Google Scholar

9 As Tiberius Gracchus did in 133 B.C. in an effort to force the passage of his agrarian law, which another tribune, Octavius, had prevented the assembly from voting upon; see Greenidge, , History of Rome, Vol. I (1904), pp. 121Google Scholar ff. On the constitutional nature of the powers exercised by Gracchus, see Greenidge, , Roman Public Life (1901), pp. 172 ff.Google Scholar

10 Op. cit., p. 162. See also Fowler, , Religious Experience of the Roman People (1911), p. 301Google Scholar.

11 Loc. cit., p. 521.

12 De republica, Lib. I, cap. x. I have quoted from a Latin edition of 1622, p. 241.

13 See, for example, his address to the judges in Star Chamber (1616), Works, ed. McIlwain, (1918), pp. 332 ff.Google Scholar

14 See Acton, Lord, Lectures on Modern History (1921), pp. 302 ff.Google Scholar

15 The High Court of Parliament (1910), Ch. 4.

16 Loc. cit., p. 517.

17 See ProfessorGarner's, James W. presidential address, “Limitations on National Sovereignty in International Law,” American Political Science Review, Vol. XIX (1925), pp. 1 ff.CrossRefGoogle Scholar

18 On the astonishing growth of such bodies in British government, see ProfessorFairlie's, J. A. article in the American Political Science Review, Vol. XX (1926), pp. 812 ff.CrossRefGoogle Scholar

19 For a general account of this work see the year-book of the committee for 1927. See also the articles by its secretary, Mr.Agnew, P. G.: “How Business is Policing Itself,” Nation's Business, December, 1925Google Scholar; “A Step Toward Industrial Self-Government,” New Republic, Vol. XLVI (1926), p. 92Google Scholar.

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