of all of the The obvious limitations of the Austinian theory of Inadequacy sovereignty have caused much controversy concerning the realistic soundness of the realistic theory of the state. It is evident theories that a sovereign state is a legal fiction. The reality is not state the existence of the power of law-making unrestricted by any legal limit. It is the existence of rulers who have the ability to secure the consent of the governed to the exercise of their authority, or at least to command habitual obedience from the bulk of those over whom they seek to hold sway. The authority of actual rulers rests upon the facts of human nature and the circumstances under which they aspire to rule their fellowmen. It varies greatly in different states, and in the same state at different times. One of the powers of a legal sovereign is the power to tax. Jurists define the tax power as the power to take the property of a citizen or subject for public use without direct compensation. The power to tax may theoretically be exerted by the sovereign of a state to the limit where the citizen or subject has no property left. In the terse phrase of John Marshall, the power to tax involves the power to destroy. But it is rarely practicable for the rulers of men to press the power to such a limit. Their authority would be undermined by covert evasion or overthrown by open resistance. Statesmen know that, despite the fictions of the jurists, their powers are strictly limited by the character and disposition of the people of the state. The rulers of imperial Germany, flushed with the prestige of longcontinued success, could wring vast sums from their spellbound subjects for the support of the most extravagant enterprises; but, after the collapse of their empire, their republican successors were incapable of procuring from a dispirited people even the means of financing a frugal government, to say nothing of repairing the damage which the imperial forces had done. The realistic theory of the state is certainly sound enough, as far as it goes, but it is a Practical The juristic theory of the state superficial explanation of the data of politics and cannot satisfy the needs of statesmen. Nevertheless, Austin's theory of sovereignty has been highly serviceable to modern lawyers and jurists. In the first place, it offers a convenient explanation of the nature and sources of the law. Lawyers are prone to accept a purely empirical test for the authenticity of the law. English and American lawyers, for example, often define the law as the rules of conduct that will be enforced in the courts. This is a convenient definition for their purposes, but it is unsatisfactory to the jurist, because it compels him to find a definition for courts of law which does not in its turn depend upon a prior definition of the law itself. This it is difficult to do. A definition of law which is more satisfactory to jurists is that which identifies it with the rules of conduct enforced by authority of the sovereign of the state. A law, according to Austin, is a command issued by a sovereign person or body of persons to his or their subjects, or to one or more of them. To know the law in any state it is only necessary to know what person or body of persons has the supreme power to make, alter, or repeal the law, and to ascertain what rules of conduct have been prescribed by his or its authority. Regulations established by subordinate authorities and long-standing customs may also acquire the force of law, if not interfered with by authority of the sovereign, for what he tolerates he may be supposed to command. Secondly, the concept of sovereignty supplies a convenient test for the existence of independent states. The rulers of states may recognize one another as possessing a power of lawmaking, unrestricted by any legal limit, and such recognition makes their respective states sovereign states under the modern law of nations. Supreme power, unrestrained by law, is, of course, not at all the same thing 1 Cf. John C. Gray, The Nature and Sources of the Law. as absolutely unlimited authority; for, if by definition there are no legal limits to the authority of sovereign rulers, there are practical limitations resulting from their knowledge of the limits of their subjects' willingness to obey and of the willingness of the sovereigns of rival states to recognize their authority. Nevertheless, a body of people, whose rulers are acknowledged by other rulers to possess sovereign power, becomes the subject of all those rights which states may exercise in their dealings with one another in accordance with the rules of international law. A state may be defined as a body of people who possess such rights. Such a theory of the state is best described as a juristic, rather than a realistic, theory. Rightly understood, it is a sound theory within its proper limits. These limits are clearly set forth in the writings of eminent jurists such as Westel W. Willoughby among American writers, and Georg Jellinek 2 among Europeans. 1 4 between The political scientist, however, needs an explanation of Distinction the nature of the state which will be more substantial than legal and the juristic theory as well as more instructive than the political Sovereignty realistic. The fiction of legal sovereignty may be serviceable to lawyers and jurists, since they are not concerned with the objectionable measures that might be enacted by an absolute sovereign, if such a sovereign were so unwise as to press his authority to the juristic limit. They are concerned only with the laws which have actually been made. They wish to know merely which of the possible rules of conduct applicable to a particular case is authentic and therefore binding in the case. But legal fictions are 1 See especially his The Nature of the State (New York, 1896), Chapter IX. 2 See especially his Allgemeine Staatslehre, 2d edition (Berlin, 1905), Chapter vi, section 2C. The idealistic theory of the state unsuited to the purposes of the statesman and the political scientist. The latter are concerned not only with what is the law, but also with what may be actually accomplished in the name of the law. The only sovereign they can afford to recognize is that which determines how much authority the legal sovereign actually possesses. This is the political sovereign of the state. Political, as distinguished from merely legal, sovereignty is not an unlimited authority. In the modern state the authority, not only of the constitutional rulers, but also of the people themselves in so far as they act politically, is substantially restricted by their disposition to recognize the distinction between the state and the various nonpolitical organizations of men, and to exalt the authority of the leaders of these latter within the fields deemed appropriate for their action. The recognition of the authority of natural law by those who claim natural rights in defiance of the authority of the state, as well as the recognition of the moral law, is equivalent to the establishment of limitations upon the authority of the political sovereign. Political sovereignty is not necessarily the same thing as public opinion, though it would be the same in a thoroughly popular state, but it is no less intangible and elusive. It is indeterminate except in terms of the purposes and will of the individual members of the state.1 The nature of the state is determined not alone by the extent of the authority of its rulers, but also by the character of the purposes of its people, rulers and ruled together. It is what people seek to accomplish by means of the state that gives it distinction and sets it apart from other kinds of human organizations. Some writers, who have defined the state by the ends which it is designed to serve, have described those ends in the broadest terms. Of 1 See James Bryce, "The Nature of Sovereignty," in his Studies in History and Jurisprudence, No. x, and also A. L. Lowell, "Sovereignty," in his Essays on Government, No. v. 1 these the most eminent is Aristotle. "Every state," he wrote, "is a community of some kind, and every community is established with a view to some good; for mankind always act in order to obtain that which they think good. But, if all communities aim at some good, the state or political community, which is the highest of all, and which embraces all the rest, aims, and in a greater degree than any other, at the highest good." Its purpose, in other words, was the fostering of the good life on the part of its members. But Aristotle was thinking of the contemporary city-state, and did not have to distinguish between so-called sovereign and subordinate political communities, as the modern writer must do, who has to take account not only of simple states, such as Uruguay or Finland, but also of highly complex composite states like the British Empire. Moreover, he overlooked the distinction between church and state. This was not a serious fault under the conditions that prevailed in ancient times, but it is an insuperable obstacle to the acceptance of his definition to-day. The ends which the modern state is designed to serve must be more precisely defined. version theory The proper ends of the state, as understood by the American American people at the time of the Revolution, were set of the forth explicitly or by plain implication in the Declaration idealistic of Independence and in the other great state papers of the period. The Declaration itself does not stop to consider explicitly the purpose of the state, or body politic, as people used to say in those days, but proceeds at once to describe the function of government in the state. "Governments are instituted among men," Jefferson wrote, to secure "certain inalienable rights" with which men are "endowed by their Creator," and among which are "life, liberty, and the pursuit of happiness." "Whenever any form of government becomes destructive to these ends," he con1 Politics, Book 1, section 1, paragraph 1. |