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Sovereign State or Sovereign Group?

Published online by Cambridge University Press:  02 September 2013

W. Y. Elliott
W. Y. Elliott
Affiliation:
University of California
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Extract

The late Professor William A. Dunning is reported to have said of the recent political theories which attempt to replace the conception of state sovereignty by some pluralistic grouping of social forces, that they were “radically unintelligible.” It is hard for political theorists who have been accustomed to regard the conception of sovereignty as a foundation stone and a sort of “rock of ages” for their faith to be told (as one is every day, more or less) that the anti-intellectualistic type of a sociological basis is the only valid one for juristic structure. For that, according to the old rationalistic conceptions of analytical jurisprudence, is indeed to base sovereignty upon shifting sands and to deprive law of any special significance of its own by equating it with social reactions of the most indeterminate character. But the anti-intellectualistic trend of modern political theory indignantly denies this charge. The assumption, it counters, that any legal center of reference can be final in its authority or in its right to command is an outworn Hegelianism, discredited by practice and theory alike. Law is too much a thing of fictions to be taken seriously in its claims, when it pretends to be giving an accurate description of facts in the abstract terms of a pretended right on the part of the state to be the sole author of enforceable commands and the only rightful claimant of men's ultimate loyalty.

Type
Research Article
Information
American Political Science Review , Volume 19 , Issue 3 , August 1925 , pp. 475 - 499
Copyright
Copyright © American Political Science Association 1925

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References

1 See the excellent essay contributed by F. W. Coker to the memorial volume contributed by the students of Professor W. A. Dunning, to complete his History of Political Theories by adding a fourth volume on Recent Times: “Pluralistic Theories and the Attack Upon State Sovereignty,” for an extensive bibliography and a very considered critical appraisal of the whole pluralistic movement. (pp. 80–119, op. cit.). For a rather different phase of pluralism than those there considered, see the writer's “The Political Application of Romanticism,” a critique of the syndicalistic philosophy of Sorel, M. Georges, in 39 Political Science Quarterly, No. 2, June, 1924, pp. 234–264.Google Scholar

2 E. M. Borchard has done the same good service (that Mr. Coker did for political pluralism) for “Political Theory and International Law” (pp. 120–140, op. cit.).

3 James, William, Pluralistic Universe, pp. 321–322.Google Scholar

4 The hopeless confusion into which Rousseau fell in these questions, he attempted to escape by the device of an ideal legislator. Apologists of the General Will theory as the basis of law have usually followed his steps, more cautiously, but to the same end.

5 Op. cit., p. 248.

6 Op. cit., pp. 181–182.

7 Op. cit., pp. 249–251.

8 Op. cit., p. 250, and p. 183.

9 The Future of Local Government, p. 177. For similar criticisms see S. and B. Webb, Constitution for the Socialist Commonwealth of Great Britain; H. Belloc and G. Chesterton, The Party System; and H. Delbrück, Government and the Will of the People.

10 Op. cit., pp. 178–179.

11 Op. cit., p. 181. See also Guild Socialism Restated, chapters on the “Commune.”

12 Mr. Maciver's notion of Community is full of the most fertile suggestions; but to translate every possible community of interest, every “area of common life” (as Mr. Cole would do) into political structure is to put an intolerable burden on citizens.

13 F. W. Coker, loc. cit. supra, (note 1) also gives a comprehensive bibliography for this attack on parliamentarism. The works of Mr. H. J. Laski furnish some interesting studies and very valuable bibliographical notes. See also the writer's “The Pragmatic Politics of Mr. H. J. Laski,” in 18 American Political Science Review, No. 2, May, 1924, pp. 251–275. Bertrand Russel's Proposed Roads to Freedom remains the classic criticism of the more extreme views of this nature. See also P. H. Douglas' chapter on “Proletarian Political Theory” in A History of Political Theories, Recent Times.

14 See “The Expansion of American Administrative Law,” by Berle, A. A. Jr., 30 Harvard Law Review (1916–1917, pp. 430, ff.)CrossRefGoogle Scholar which gives a typical statement of the extent to which administrative commissions use all three types of power in fact, and the limits set upon them by the jurisprudence of the Supreme Court of the United States. Cf. Barker's, Ernest article on English administrative law, “The Rule of Law,” 1 Political Quarterly, No. 2, May, 1914Google Scholar, and Léon Duguit, Traité de droit constitutionnel, for French droit administratif.

15 This is the difficulty to be found with the proposal recently made by the Webbs in their Constitution for the Socialistic Commonwealth of Great Britain to cure the present hypertrophy of Parliament by dividing it into two halves, so to speak: a Social and a Political Parliament. The scheme is seductive enough until one reflects that it destroys the one virtue Parliament has retained, unified responsibility and simplicity in its enforcement. The German experiment of a subordinate and advisory Industrial Parliament seems more hopeful. See H. Finer, Representative Government and a Parliament of Industry. See also his “Case against Proportional Representation,” Fabian Tract No. 211.

16 The impotence of a parliamentarism in Italy was due in no small part to the bloc system of majority-forming that seems to be necessary where there are more than two strong parties, and no party has a clear majority.

17 Odon Por, himself a Guild Socialist, in Fascism (translated by Mrs. Emily Townshend), has given an unbiased picture of this failure of syndicalism in its revolutionary phase in Italy. See especially pp. 41–55. See also Mowrer, E. A., Immortal Italy, (1922)Google Scholar—“The Revolution that Never Was.”

18 Dicey, A. V., The Law of the Constitution, 8th Ed., Introd. p. xciGoogle Scholar, et seq.

19 G. D. H. Cole, Social Theory, and Guild Socialism Restated; also The Future of Local Government, especially the chapter criticizing “Webbismus.” For criticisms of Mr. Cole's theory in detail see the essay of F. W. Coker, op. cit., and the following articles: Ellis, E. D., “The Pluralistic State,” 14 American Political Science Review, (1920)CrossRefGoogle Scholar; “Guild Socialism and Pluralism,” ibid, vol. 17, (1923); G. H. Sabine, “Pluralism, a Point of View,” ibid, vol. 17, (1923); and P. H. Douglas, “Proletarian Political Theory”—loc. cit. supra. Note 13.

One of the best general statements of the movement called “guild socialism” and the most detailed critique of it is the book of that name by Niles Carpenter. See also Odon Por, Guilds and Cooperatives in Italy.

20 Mr. Dewey's “instrumentalist” pragmatism contained in germ the philosophy of “Solidarisme” upon which M. Duguit bases his decentralized theor of the functional state.

21 Mr. A. D. Lindsay, the present Master of Balliol, has given hie own views of “sovereignty,” a classic statement, in The Proceedings of the Aristotelian Society, June 16, 1924.

22 Loc. cit., vol. 2, (Feb., 1915).

23 Loc. cit., p. 462, note. The whole chapter on “Pluralistic Theories of Sovereignty” is an excellent summary of the relation of the modern doctrines to the development of political theories in their historical continuity.

24 The Eighteenth Amendment to the Constitution of the United States, and proposed Amendments such as that authorizing the passage of nation-wide child labor laws, are evidence that the amending process may be turned to statute making, as it has in state government within the nation, if the rigidity of the Federal Constitution blocks this national spirit. For an excellent criticism of the dangers inherent in pushing this centralizing tendency too far see Walter Thompson, Federal Centralization.

The platform of Mr. La Follette's party in the recent election demanded that Congress be constitutionally empowered to override the decision of the Supreme Court. Such a provision would naturally make for putting the guardianship of the principles of the Constitution ultimately in the hands of Congress, and would undoubtedly render the Constitution “flexible” in practice to the point of destroying its really federal character.

25 The real point that is being made by pluraliste is that the acceptance and enforcement of laws (statutes, ordinances, etc.) is a matter of degree, and that even the constitutional bases of legal sovereignty do not command a loyalty from citizens that is undivided with other groups within the state. If one grants, however, that legal sovereignty is a pragmatic matter, to be tested in the working, one may also point out that constitutional unity still remains an a priori as well as a pragmatic necessity to the limitation of the resort to force by groups of any sort, and to the enforcement of responsibility against government itself, as the agent of that particular community of purpose which can be reduced to legal terms. The attack on the state (as it actually is embodied in a given polity) can only be justified when the sphere of government is being steadily pushed (either by a majority or by the pressure of a bloc on representatives, beyond the limits laid down by such community of purpose among the citizens as is capable of being translated into enforceable law. This is no more indeed, than to admit an ultimate right of revolution where constitutional forms are outworn or repressive, and substantially impossible of amendment by political means.

26 Loc. cit. supra, note 21. See also his articles on “The Political Theory of Norman Angell,” 1 Political Quarterly, no. 1, (Feb., 1914), and “The State in Recent Political Theory,” ibid, no. 4, (Dec., 1914), and his contribution to Recent Developments in European Thought (edited by F. S. Marvin) “Recent Political Theory” (p. 164–180).

27 M. Duguit, both in the Traité de droit constitutionnel, and in Sovereignty and Liberty recurs again and again to the manner in which the French government broke the general strike of May 1, 1920 (launched first on the railroads) by calling out troops. His system of law, founded on social reactions and the necessity of securing the functioning of the nation as an economic organism, would give a theoretical basis for Mussolini's interpretation of Fascism. See the writer's “The Metaphysics of Duguit's Pragmatic Conception of Law,” 37 Political Science Quarterly, no. 4, (Dec., 1922) and review of Duguit's Traité, ibid, vol. 39, no. 4, (Dec., 1924).

28 Loc. cit., 2 Political Quarterly, no. 1, (Feb., 1915).

29 As this goes to press, the Church, acting through the Fundamentalism of Tennessee, has reasserted its claim to group rights in an extreme degree, even to the control of state education. On the other hand, the recent decision of the Supreme Court extending the protection of the First Amendment (through the Fourteenth) over the state of Oregon, has protected the group rights of religious sects against compulsory state control of all education.

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