E. Rousseau
64. That ‘sovereignty of the people,’ which Locke looks upon as held in reserve after its original exercise in the establishment of government, only to be asserted in the event of a legislature proving false to its trust, Rousseau supposes to be in constant exercise. Previous writers had thought of the political society or commonwealth, upon its formation by compact, as instituting a sovereign. They differed chiefly on the point whether the society afterwards had or had not a right of displacing an established sovereign. Rousseau does not think of the society, civitas or commonwealth, as thus instituting a sovereign, but as itself in the act of its formation becoming a sovereign and ever after continuing so.
65. In his conception of a state of nature, Rousseau does not differ from Locke. He conceives the motive for passing out of it, however, somewhat differently and more after the manner of Spinoza. With Locke the motive is chiefly a sense of the desirability of having an impartial judge, and efficient enforcement of the law of nature. According to Rousseau, some pact takes place when men find the hindrances to their preservation in a state of nature too strong for the forces which each individual can bring to bear against them. This recalls Spinoza’s view of the ‘jus in naturam’ as acquired by a combination of the forces of individuals in civil society.
66. The ‘problem of which the social contract is a solution’ Rousseau states thus: ‘To find a form of association which protects with the whole common force the person and property of each associate, and in virtue of which everyone, while uniting himself to all, only obeys himself and remains as free as before.’ (Contrat Social, I, vi.) The terms of the contract which solves this problem Rousseau states thus: ‘Each of us throws into the common stock his person and all his faculties under the supreme direction of the general will; and we accept each member as an individual part of the whole…. There results from this act of association, in place of the several persons of the several contracting parties, a collective moral body, composed of as many members as there are voices in the assembly, which body receives from this act its unity, its common self, its life, and its will…. It is called by its members a state when it is passive, a sovereign when it is active, a power when compared with similar bodies. The associates are called collectively a people, severally citizens as sharing in the sovereign authority, subjects as submitted to the laws of the state.’ (Ib.) Each of them is under an obligation in two relations, ‘as a member of the sovereign body towards the individuals, and as a member of the state towards the sovereign.’ All the subjects can by a public vote be placed under a particular obligation towards the sovereign, but the sovereign cannot thus incur an obligation towards itself. It cannot impose any law upon itself which it cannot cancel. Nor is there need to restrict its powers in the interest of the subjects. For the sovereign body, being formed only of the individuals which constitute it, can have no interest contrary to theirs. ‘From the mere fact of its existence, it is always all that it ought to be’ (since, from the very fact of its institution, all merely private interests are lost in it). On the other hand, the will of the individual (his particular interest as founded upon his particular desires) may very well conflict with that general will which constitutes the sovereign. Hence the social pact necessarily involves a tacit agreement, that anyone refusing to conform to the general will shall be forced to do so by the whole body politic; in other words, ‘shall be forced to be free,’ since the universal conformity to the general will is the guarantee to each individual of freedom from dependence on any other person or persons. (I, vii.)
67. The result to the individual may be stated thus. He exchanges the natural liberty to do and get what he can, a liberty limited by his relative strength, for a liberty at once limited and secured by the general will; he exchanges the mere possession of such things as he can get, a possession which is the effect of force, for a property founded on a positive title, on the guarantee of society. At the same time he becomes a moral agent. Justice instead of instinct becomes the guide of his actions. For the moral slavery to appetite he substitutes the moral freedom which consists in obedience to a self-imposed law. Now for the first time it can be said that there is anything which he ought to do, as distinguished from that which he is forced to do. (I, viii.)
68. Such language makes it clear that the sovereignty of which Rousseau discusses the origin and attributes, is something essentially different from the supreme coercive power which previous writers on the ‘jus civile’ had in view. A contemporary of Hobbes had said that
‘there’s on earth a yet auguster thing, Veiled though it be, than Parliament and King.’
It is to this ‘auguster thing,’ not to such supreme power as English lawyers held to be vested in ‘Parliament and King,’ that Rousseau’s account of the sovereign is really applicable. What he says of it is what Plato or Aristotle might have said of the θεῖος νοῦς,1 which is the source of the laws and discipline of the ideal polity, and what a follower of Kant might say of the ‘pure practical reason,’ which renders the individual obedient to a law of which he regards himself, in virtue of his reason, as the author, and causes him to treat humanity equally in the person of others and in his own always as an end, never merely as a means. But all the while Rousseau himself thinks that he is treating of the sovereign in the ordinary sense; in the sense of some power of which it could be reasonably asked how it was established in the part where it resides, when and by whom and in what way it is exercised. A reader of him who is more or less familiar with the legal conception of sovereignty, but not at all with that of practical reason or of a ‘general will.’ a common ego, which wills nothing but what is for the common good, is pretty sure to retain the idea of supreme coercive power as the attribute of sovereignty, and to ignore the attribute of pure disinterestedness, which, according to Rousseau, must characterise every act that can be ascribed to the sovereign.
69. The practical result is a vague exaltation of the prerogatives of the sovereign people, without any corresponding limitation of the conditions under which an act is to be deemed that of the sovereign people. The justifiability of laws and acts of government, and of the rights which these confer, comes to be sought simply in the fact that the people wills them, not in the fact that they represent a true ‘volonté générale,’ an impartial and disinterested will for the common good. Thus the question of what really needs to be enacted by the state in order to secure the conditions under which a good life is possible, is lost sight of in the quest for majorities; and as the will of the people in any other sense than the measure of what the people will tolerate is really unascertainable in the great nations of Europe, the way is prepared for the sophistries of modern political management, for manipulating electoral bodies, for influencing elected bodies, and procuring plébiscites.
70. The incompatibility between the ideal attributes which Rousseau ascribes to the sovereign and any power that can actually be exercised by any man or body of men becomes clearer as we proceed. He expressly distinguishes ‘sovereignty’ from power, and on the ground of this distinction holds that it cannot be alienated, represented, or divided. ‘Sovereignty being simply the exercise of the general will can never be alienated, and the sovereign, who is only a collective being, can only be represented by himself. Power can be transmitted, but not will.’ (II, i.) In order to the possibility of a representation of the general will, there must be a permanent accord between it and the individual will or wills of the person or persons representing it. But such permanent accord is impossible. (Ib.) Again, a general will is from the nature of the case indivisible. It is commonly held to be divided, not, indeed, in respect of its source, but in respect of the objects to which its acts are directed, e.g. into legislative and executive powers; into rights of taxation, of war, of justice, &c. But this supposed division of sovereign powers or rights implies that ‘what are only emanations from the sovereign authority are taken to be parts of it.’ (II, ii.) The only exercise of sovereign power, properly so called, is in legislation, and there is no proper act of legislation except when the whole people comes to a decision with reference to the whole people. Then the matter decided on is as general as the will which decides on it; and this is what constitutes a law. (II, vi.) By this consideration several questions are answered. Whose office is it to make laws? It is that of the general will, which can neither be alienated nor represented. Is the prince above the law? The answer is, He is a member of the state, and cannot be so. Can the law be unjust? No one can be unjust to himself: therefore not the whole people to the whole people. How can we be free and yet subject to the laws? The laws are the register of our own will. (Ib.) Laws, in short, are properly those general ‘conditions of civil association’ which the associates impose on themselves. Where either of the specified conditions is lacking, where either it is not the universal will from which an ordinance proceeds or it is not the whole people to which it relates, it is not a law but a decree, not an act of sovereignty but of magistracy. (Ib.)
71. This leads to a consideration of the nature and institution of magistracy or government. (III, i.) The government is never the same as the sovereign. The two are distinguished by their functions, that of the one being legislative, that of the other executive. Even where the people itself governs, its acts of government must be distinguished from its acts of sovereignty, the former having a particular, the latter a general, reference. Government is the exercise according to law of the executive power, and the ‘prince’ or ‘magistrate’ is the man or body of men charged with this administration; ‘a body intermediary between the subjects and the sovereign, charged with the execution of the laws, and with the maintenance of civil and political freedom’ (Ib.) Where all or most of the citizens are magistrates, or charged with the supreme functions of government, we have a democracy; where a few, an aristocracy; where one is so charged, a monarchy. (III, iii.) The differences depend, not as Hobbes and others had supposed, on the quarter where the sovereignty resides—for it must always reside in the whole body of people—but on that in which government resides. The idea of government is that the dominant will of the prince should be the general will or law, that it should be simply the public force by which that general will is brought to bear on individuals or against other states, serving the same purpose in the state as the union of soul and body in the individual (III, i.); and this idea is most likely to be satisfied under a democracy. There, the general will (if there is a general will, which the democracy is no guarantee for there being, according to Rousseau’s distinction between the ‘volonté générale’ and ‘volonté de tous,’ of which more hereafter) cannot fail to coincide with the dominant will of the government. The prevalence of particular interests may prevent there being a will at all of the kind which Rousseau would count general or truly sovereign, but they cannot be more prevalent in the magistracy, constituted by the whole people, than in the same people acting in the way of legislation. In a democracy, therefore, the will of the sovereign, so far as there is a sovereign in the proper sense, necessarily finds expression in the will of the magistracy. On the other hand, though under either of the other forms of government there is danger of collision between sovereign and government, yet the force of the government is greater than in a democracy. It is greatest when the government is a monarchy, because under all other forms there is more or less discrepancy between the individual wills of the several persons composing the government, as directed to the particular good of each, and the corporate will of the government of which the object is its own efficiency, and under a monarchy this source of weakness is avoided. (III, ii.) As there is more need of force in the government in proportion to the number of subjects whose particular wills it has to control, it follows that monarchy is best suited to the largest, democracy to the smallest states. (III, iii.)
72. As to the institution of government, Rousseau maintains strenuously that it is not established by contract. ‘There is only one contract in the state, viz. that of the original association; and this excludes every other. No other public contract can be imagined which would not be a violation of the first.’ (III, xvi.) Even when government is vested in an hereditary body, monarchic or aristocratic, this is merely a provisional arrangement, made and liable to be reversed by the sovereign, whose officers the governors are. The act by which government is established is twofold, consisting firstly of the passing of a law by the sovereign, to the effect that there shall be a government; secondly, of an act in execution of this law, by which the governors—the ‘magistrates’—are appointed. But it may be asked, How can the latter act, being one not of sovereignty but of magistracy (for it has a particular reference in the designation of the governors), be performed when as yet there is no government? The answer is that the people resolves itself from a sovereign body into a body of magistrates, as the English Parliament resolves itself constantly from a legislative body into a committee. In other words, by a simple act of the general will a democracy is for the time established, which then proceeds either to retain the government in its own hands, or to place it in those of an officer, according to the form in which the sovereign has decided to establish the government. (III, xvii.) Acts similar to that by which the government was originally constituted need to be periodically repeated in order to prevent the government from usurping the functions of the sovereign, i.e. the function of legislation. (Could this usurpation occur under a democracy?) In order that the sovereignty may not fall into abeyance, it must be exercised, and it can only be exercised in assemblies of the whole people. These must be held periodically, and at their opening two questions ought to be submitted; one, whether it pleases the sovereign to maintain the present form of government; the other, whether it pleases the people to leave the administration in the hands of those at present charged with it. (III, xviii.) Such assemblies are entitled to revise and repeal all previously enacted laws. A law not so repealed the sovereign must be taken tacitly to confirm, and it retains its authority. But as the true sovereign is not any law but the general will, no law, even the most fundamental, can be exempt from liability to repeal. Even the social pact itself might legitimately be dissolved, by agreement of all the citizens assembled. (Ib.) (Whether unanimity is necessary for the purpose is not specified.) Without such assemblies there can be no exercise of the general will (which, as before stated, cannot be represented), and consequently no freedom. The English people, e.g., is quite mistaken in thinking itself free. It is only free while the election of members of Parliament is going on. As soon as they are elected, it is in bondage, it is nothing. In the short moments of its freedom it makes such a bad use of it that it well deserves to lose it. (III, xv.)
73. It appears from the above that, according to Rousseau, the general will, which is the true sovereign, can only be exercised in assemblies of the whole people. On the other hand, he does not hold that an act of such an assembly is necessarily an act of the general will. After telling us that the ‘general will is always right, and always tends to the public good,’ he adds, ‘but it does not follow that the deliberations of the people have always the same rectitude…. There is often a great difference between the will of all and the general will. The latter only looks to the common interest; the other looks to private interests, and is only a sum of the wills of individuals.’ (II, iii.) Again (II, iv.), ‘that which generalises the will is not so much the number of voices as the common interest which unites them.’ He holds apparently that in the assembly of the whole people, if they had sufficient information, and if no minor combinations of particular interests were formed within the entire body, the difference between the wills of individuals would neutralise each other, and the vote of the whole body would express the true general will. But in fact in all assemblies there is at least a liability to lack of information and to the formation of cliques; and hence it cannot be held that the vote of the assembly necessarily expresses the general will. Rousseau, however, does not go so far as to say that unless the law is actually such as contributes to the common good, it is not an expression of the general will. The general will, according to him, always aims at or wills the common good, but is liable to be mistaken as to the means of attaining it.’ It is always right, but the judgment which guides it is not always enlightened…. Individuals see the good which they reject; the public wills the good which it does not see.’ (II, vi.) Hence the need of a guide in the shape of a great lawgiver. Apparently, however, the possible lack of enlightenment on the part of the general will does not, in Rousseau’s view, prevent its decisions from being for the public good. In discussing the ‘limits of the sovereign power’ he maintains that there can be no conflict between it and the natural right of the individual, because, ‘although it is only that part of his power, his goods, his freedom, of which the use is important to the community, that the individual transfers to the sovereign by the social pact, yet the sovereign alone can be judge of the importance’; and the sovereign ‘cannot lay on the subjects any constraint which is not for the good of the community.’ ‘Under the law of reason’ (which is thus identified with the general will) ‘nothing is done without a cause, any more than under the law of nature.’ (II, iv.)
74. But though even an unenlightened general will is the general will still, and (as we are left to infer) cannot in its decisions do otherwise than promote the public good, Rousseau distinctly contemplates the possibility of the general will being so overpowered by particular interests that it finds no expression in the votes of a popular assembly, though the assembly be really one of a whole people, and the vote of the majority is duly taken. (IV, i.) In such cases it is not that the general will is ‘annihilated or corrupted; it is always constant, unalterable, and pure.’ Even in the individual whose vote is governed by his private interest the general will is not extinct, nor is he unaware either of what the public good requires or of the fact that what is for the public good is also for his own. But his share in the public evil to which he knows that his vote will contribute, seems nothing by the side of the special private good which he hopes to gain. By his vote, in short, he does not answer the question, Is so and so for the advantage of the state? but, Is it for the advantage of this particular man or party? (Ib.)
75. The test of the dominance of the general will in assemblies of the people is an approach to unanimity. ‘Long debates, discussions, tumult, indicate the ascendency of particular interests and the decline of the state.’ (IV, ii.) Rousseau, however, does not venture to say that absolute unanimity in the assembly is necessary to an expression of the general will, or to give a law a claim upon the obedience of the subjects. This would have been to render effectual legislation impossible. Upon the theory, however, of the foundation of legitimate sovereignty in consent, the theory that the natural right of the individual is violated unless he is himself a joint imponent of the law which he is called to obey, it is not easy to see what rightful claim there can be to the submission of a minority. Rousseau so far recognises the difficulty that he requires unanimity in the original compact. (IV, ii.) If among those who are parties to it there are others who oppose it, the result is simply that the latter are not included in it. ‘They are strangers among the citizens.’ But this does not explain how they are to be rightfully controlled, on the principle that the only rightful control is founded on consent; or, if they are not controlled, what is the value of the ‘social compact.’ How can the object of the pact be attained while those who are bound by it have these ‘strangers’ living among them who are not bound by it, and who, not being bound by it, cannot be rightfully controlled? The difficulty must recur with each generation of the descendants of those who were parties to the original pact. The parties to the pact, it is true, have no right to resist the general will, because the pact is ex hypothesi to the effect that each individual, in all things of common concern, will take the general will for his own. The true form, therefore, of the question upon which each party to the pact should consider himself to be voting in the assembly is, as Rousseau puts it, not ‘Is the proposed measure what I wish for, or what I approve, or no?’ but ‘Is it in conformity with the general will?’ If, having voted upon this question, he finds himself in a minority, he is bound to suppose that he is mistaken in his views of the general will, and to accept the decision of the majority as the general will which, by the pact, he is bound to obey. So far all is consistent; though how the individual is to be answered if he pleads that the vote of the assembly has been too much biassed by particular interests to be an expression of the general will, and that therefore it is not binding on him, does not appear.
76. But after the first generation of those who were parties to the supposed original compact, what is to settle whether anyone is a party to it or no? Rousseau faces the question, but his only answer is that when once the state is instituted, consent is implied in residence; ‘to dwell on the territory is to submit to the sovereignty.’ (IV, ii.) This answer, however, will scarcely stand examination. Rousseau himself does not consider that residence in the same region with the original parties to the pact renders those so resident also parties to it. Why should it do so, when the pact has descended to a later generation? It may be argued of course that everyone residing in a settled society, which secures him in his rights of person and property, has the benefit of the society from the mere fact of his residence in it, and is therefore morally bound to accept its laws. But this is to abandon the doctrine of obligation being founded on consent. Residence in a territory governed by a certain sovereign can only be taken to imply consent to the rule of that sovereign, if there is any real possibility of relinquishing it, and this there can scarcely ever be.
77. Rousseau certainly carried out the attempt to reconcile submission to government with the existence of natural rights antecedent to the institution of government, by the hypothesis of a foundation of government in consent, more consistently than any other writer; and his result shows the hopelessness of the attempt. To the consistency of his theory he sacrifices every claim to right on the part of any state except one in which the whole body of citizens directly legislates, i.e. on the part of nearly all states then or now existing; and finally he can only justify the control of the minority by the majority in any state whatever by a subterfuge. It does not follow, however, because the doctrine of natural rights and the consequent conception of government as founded on compact are untenable, that there is no truth in the conception of the state or sovereign as representing a general will, and as authorised or entitled to obedience on that account. It is this conception, as the permanently valuable thing in Rousseau, that we have now further to consider.
78. The first remark upon it which suggests itself is that, as Rousseau puts the matter, there may be an independent political society in which there is no sovereign power at all, or in which, at any rate, it is not exercised. The sovereign is the general will. But the general will can only be exercised through the assembly of a whole people. The necessary conditions of its exercise, then, in Rousseau’s time, were only fulfilled in the Swiss cantons and (perhaps) in the United Provinces. In England they were fulfilled in a way during the time of a general election. But even where these conditions were fulfilled, it did not follow that the general will was put in force. It might be overpowered, as in the Roman comitia, by particular interests. Is it then to be understood that, according to Rousseau, either there can be independent states without any sovereignty in actual exercise, or that the European states of his time, and equally the great states of the present day (for in none of these is there any more exercise of the general will than in the England of his time), are not properly states at all?
79. We may try to answer this question by distinguishing sovereign de facto from sovereign de jure, and saying that what Rousseau meant was that the general will, as defined by him and as exercised under the conditions which he prescribes, was the only sovereign de jure, but that he would have recognised in the ordinary states of his time a sovereign de facto; and that in the same way, when he describes the institution of government as arising out of a twofold act consequent on the original pact (an act in which the sovereign people first decides that there shall be a government, and then, not as a sovereign people, but as a democratic magistracy, decides in what hands the government shall be placed), he does not conceive himself to be describing what has actually taken place, but what is necessary to give a government a moral title to obedience. Whether Rousseau himself had this distinction in view is not always clear. At the outset he states his object thus: ‘Man is born free, and everywhere he is in fetters. How has this change come about? I do not know. What can render it legitimate? That is a question which I deem myself able to answer.’ (I, i.) The answer is the account of the establishment of a sovereign by social pact. It might be inferred from this that he considered himself in the sequel to be delineating transactions to the actual occurrence of which he did not commit himself, but which, if they did occur, would constitute a duty as distinct from a physical necessity of submission on the part of subjects to a sovereign, and to which some equivalent must be supposed, in the shape of a tacit present convention on the part of the members of a state, if their submission is to be matter of duty as distinct from physical necessity, or is to be explained as a matter of right by the ostensible sovereign. This, however, would merely be an inference as to his meaning. His actual procedure is to describe transactions, by which the sovereignty of the general will was established, and by which it in turn established a government, as if they had actually taken place. Nor is he content with supposing a tacit consent of the people as rendering subjection legitimate. The people whose submission to law is to be ‘legitimate’ must actually take part in sovereign legislative assemblies. It is very rarely that he uses language which implies the possibility of a sovereign power otherwise constituted. He does indeed speak1 of the possibility of a prince (in the special meaning of the term, as representing the head of the executive) usurping sovereignty, and speaks of the sovereignty thus usurped as existing de facto, not de jure; but in no other connection (so far as I have observed) does he speak of anything short of the ‘volonté générale’ exercised through the vote of an assembled people as sovereign at all. And the whole drift of his doctrine is to show that no sovereign, otherwise constituted, had any claim on obedience. There was no state in Europe at his time in which his doctrine would not have justified rebellion, and even under existing representative systems the conditions are not fulfilled which according to him are necessary to give laws the claim on our obedience which arises from their being an expression of the general will. The only system under which these conditions could be fulfilled would be one of federated self-governing communes, small enough to allow each member an active share in the legislation of the commune. It is probably the influence of Rousseau that has made such a system the ideal of political enthusiasts in France.
F. SOVEREIGNTY AND THE GENERAL WILL. Rousseau and Austin.
80. The questions then arise (1) whether there is any truth in Rousseau’s conception of sovereignty as founded upon a ‘volonté générale’ in its application to actual sovereignty. Does anything like such a sovereignty exist in the societies properly called political? (2) Is there any truth in speaking of a sovereignty de jure founded upon the ‘volonté générale? (3) If there is, are we to hold with Rousseau that this ‘will’ can only be exercised through the votes of a sovereign people?
81. (1) The first question is one which, if we take our notions of sovereignty from such writers as Austin, we shall be at first disposed decidedly to negative. Austin is considered a master of precise definition. We may begin, therefore, by looking to his definition of sovereignty and the terms connected with it. His general definition of law runs as follows: ‘A law, in the most general and comprehensive acceptation in which the term, in its literal meaning, is employed, may be said to be a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.’1 These rules are of two kinds: (1) laws set by God to men, or the law of nature; and (2) laws set by men to men, or human law. We are only concerned with the latter, the human laws. These are again distinguished into two classes, according as they are or are not established by political superiors. ‘Of the laws or rules set by men to men, some are established by political superiors, sovereign and subject; by persons exercising supreme and subordinate government, in independent nations, or independent political societies’ (pp. 88 and 89). ‘The aggregate of the rules established by political superiors is frequently styled positive law, or law existing by position’ (p. 89). This is distinguished from ‘positive morality.’ Laws are further explained as a species of commands. A command is a signification of desire, distinguished by the fact that the party to whom it is addressed is liable to evil from the party expressing the desire in case he does not comply with it (p. 91). This liability to evil forms the sanction of the command. Where a command ‘obliges generally to acts or forbearances of a class, it is a law’ (p. 95). ‘Every positive law, or every law simply and strictly so called, is set by a sovereign person or a sovereign body of persons to a member or members of the independent political society wherein that person or body is sovereign or supreme. Or (changing the expression) it is set by a monarch, or sovereign member, to a person or persons in a state of subjection to its author. Even though it sprung directly from another fountain or source, it is a positive law, or a law strictly so called, by the institution of that present sovereign in the character of political superior. Or (borrowing the language of Hobbes) the legislator is he, not by whose authority the law was first made, but by whose authority it continues to be a law’ (pp. 225 and 226).
‘The notions of sovereignty and independent political society may be expressed concisely thus. If a determinate human superior, not in a habit of obedience to a like superior, receive habitual obedience from the bulk of a given society, that determinate superior is sovereign in that society, and the society (including the superior) is a society political and independent’ (p. 226).
‘In order that a given society may form a society political and independent, the two distinguishing marks which I have mentioned above must unite. The generality of the given society must be in a habit of obedience to a determinate and common superior; whilst that determinate person, or determinate body of persons, must not be habitually obedient to a determinate person or body. It is the union of that positive with this negative mark which renders that certain superior sovereign or supreme, and which renders that given society (including that certain superior) a society political and independent’ (p. 227).
82. It may be remarked in passing that, according to the above, while every law implies a sovereign, from whom directly or indirectly (through a subordinate political superior) it proceeds, it is not necessary to a sovereign that his commands should take the form of laws, as opposed to ‘particular or occasional commands.’ A superior might signify his desires only in the form of such particular and occasional commands, and yet there might be a habit of obedience to him, and he might not be habitually obedient to any other person or body; in which case he would be a ‘sovereign.’
83. Austin’s doctrine seems diametrically opposite to one which finds the sovereign in a ‘volonté générale,’ because (a) it only recognises sovereignty in a determinate person or persons, and (b) it considers the essence of sovereignty to lie in the power, on the part of such determinate persons, to put compulsion without limit on subjects, to make them do exactly as it pleases.1 The ‘volonté générale,’ on the other hand, it would seem, cannot be identified with the will of any determinate person or persons; it can, indeed, according to Rousseau, only be expressed by a vote of the whole body of subject citizens; but when you have got them together, there is no certainty that their vote does express it; and it does not—at any rate necessarily—command any power of compulsion, much less unlimited power. Rousseau expressly contemplates the possibility of the executive power conflicting with and overbearing the general will. Indeed, according to his view, it was the ordinary state of things; and though this view may be exaggerated, no one could maintain that the ‘general will,’ in any intelligible sense of the words, had always unlimited force at its command.
84. The two views thus seem mutually exclusive, but perhaps it may be by taking each as complementary to the other that we shall gain the truest view of sovereignty as it actually exists. In those states of society in which obedience is habitually rendered by the bulk of society to some determinate superior, single or corporate, who, in turn, is independent of any other superior, the obedience is so rendered because this determinate superior is regarded as expressing or embodying what may properly be called the general will, and is virtually conditional upon the fact that the superior is so regarded. It is by no means an unlimited power of compulsion that the superior exercises, but one dependent in the long run, or dependent for the purpose of insuring an habitual obedience, upon conformity to certain convictions on the part of the subjects as to what is for their general interest. As Maine says (Early History of Institutions, p. 359), ‘the vast mass of influences, which we may call for shortness moral, perpetually shapes, limits, or forbids the actual direction of the forces of society by its sovereign.’ Thus, quite apart from any belief in the right of revolution, from the view that the people in any state are entitled to an ultimate sovereignty, or are sovereign de jure, and may withdraw either legislative or executive power from the hands in which it has been placed in the event of its being misused, it may fairly be held that the ostensible sovereign—the determinate person or persons to whom we can point and say that with him or them lies the ultimate power of exacting habitual obedience from the people—is only able to exercise this power in virtue of an assent on the part of the people, nor is this assent reducible to the fear of the sovereign felt by each individual. It is rather a common desire for certain ends—specially the ‘pax vitaeque securitas’—to which the observance of law or established usage contributes, and in most cases implies no conscious reference on the part of those whom it influences to any supreme coercive power at all. Thus when it has been ascertained in regard to any people that there is some determinate person or persons to whom, in the last resort, they pay habitual obedience, we may call this person or persons sovereign if we please, but we must not ascribe to him or them the real power which governs the actions and forbearances of the people, even those actions and forbearances (only a very small part) which are prescribed by the sovereign. This power is a much more complex and less determinate, or less easily determinable, thing; but a sense of possessing common interests, a desire for common objects on the part of the people, is always the condition of its existence. Let this sense or desire—which may properly be called general will—cease to operate, or let it come into general conflict with the sovereign’s commands, and the habitual obedience will cease also.
85. If, then, those who adopt the Austinian definition of a sovereign mean no more than that in a thoroughly developed state there must be some determinate person or persons, with whom, in the last resort, lies the recognised power of imposing laws and enforcing their observance, over whom no legal control can be exercised, and that even in the most thorough democracy, where laws are passed in the assembly of the whole people, it is still with determinate persons, viz. a majority of those who meet in the assembly, that this power resides, they are doubtless right. So far they only need to be reminded that the thoroughly developed state, as characterised by the existence of such definite sovereignty, is even among civilised people but imperfectly established. It is perfectly established (1) where customary or ‘common’ or ‘judge-made’ law, which does not proceed from any determinate person or persons, is either superseded by express enactments that do proceed from such person or persons, or (as in England) is so frequently trenched upon by statute law that it may fairly be said only to survive upon sufferance, or to be itself virtually enacted by the sovereign legislature; and (2) where no question of right can be raised between local legislatures or authorities and the legislature claiming to be supreme, as in America before the war of secession, and as might perhaps be found to be the case in Germany now, if on certain educational and ecclesiastical matters the imperial legislature came to be at issue with the local legislatures. But though the organisation of the state, even in civilised and independent nations, is not everywhere complete, it no doubt involves the residence with determinate persons, or a body or bodies, of supreme i.e. legally uncontrolled power to make and enforce laws. The term ‘sovereign’ having acquired this definite meaning, Rousseau was misleading his readers when he ascribed sovereignty to the general will. He could only be understood as meaning, and in fact understood himself to mean, that there was no legitimate sovereign except in the most thorough democracy, as just described.
86. But the Austinians, having found their sovereign, are apt to regard it as a much more important institution than—if it is to be identified with a determinate person or persons—it really is; they are apt to suppose that the sovereign, with the coercive power (i.e. the power of operating on the fears of the subjects) which it exercises, is the real determinant of the habitual obedience of the people, at any rate of their habitual obedience in respect of those acts and forbearances which are prescribed by law. But, as we have seen, this is not the case. It then needs to be pointed out that if the sovereign power is to be understood in this fuller, less abstract sense, if we mean by it the real determinant of the habitual obedience of the people, we must look for its sources much more widely and deeply than the ‘analytical jurists’ do; that it can no longer be said to reside in a determinate person or persons, but in that impalpable congeries of the hopes and fears of a people, bound together by common interests and sympathy, which we call the general will.
87. It may be objected that this view of the general will, as that on which habitual obedience to the sovereign really depends, is at best only applicable to ‘self-governing’ communities, not to those under a despotic sovereign. The answer is that it is applicable in all forms of society where a sovereign in the sense above defined (as a determinate person or persons with whom in the last resort lies the recognised power of imposing laws and enforcing their observance) really exists, but that there are many where there cannot fairly be said to be any such sovereign at all; in other words, that in all organised communities the power which practically commands the habitual obedience of the people in respect of those acts and forbearances which are enjoined by law or authoritative custom, is one dependent on the general will of the community, but this power is often not sovereign in the sense in which the ruler of an independent state is sovereign. It may very well be that there is at the same time another power merely coercive, a power really operating on people simply through their fears, to which obedience is rendered, and which is not in turn representative of a general will; but where this is the case we shall find that such power is only in contact with the people, so to speak, at one or two points; that their actions and forbearances, as determined by law and custom, are in the main independent of it; that it cannot in any proper sense be said to be a sovereign power over them; at any rate, not in the sense in which we speak of King, Lords, and Commons as sovereign in England.
88. Maine has pointed out (Early History of Institutions, Lecture XIII.) that the great despotic empires of ancient times, excluding the Roman, of which more shall be said directly, and modern empires in the East were in the main tax-collecting institutions. They exercise coercive force over their subjects of the most violent kind for certain purposes at certain times, but they do not impose laws as distinct from ‘particular and occasional commands’ nor do they judicially administer or enforce a customary law. In a certain sense the subjects render them habitual obedience, i.e. they habitually submit when the agents of the empire descend on them for taxes and recruits, but in the general tenor of their lives their actions and forbearances are regulated by authorities with which the empire never interferes,—with which probably it could not interfere without destroying itself. These authorities can scarcely be said to reside in a determinate person or persons at all, but, so far as they do so, they reside mixedly in priests or exponents of customary religion, in heads of families acting within the family, and in some village-council acting beyond the limits of the family. Whether, in such a state of things, we are to consider that there is a sovereign power at all, and, if so, where it is to be considered to reside, are chiefly questions of words. If complete uncontrolledness by a stronger power is essential to sovereignty, the local authorities just spoken of are not sovereign. The conquering despot could descend on them and sweep them away, leaving anarchy in their place, and he does compel them to be put in exercise for a particular purpose, that of raising tribute or sometimes recruits. On the other hand, these authorities, which represent a general will of the communities, form the power which determines such actions and forbearances of the individual as do not proceed from natural inclination. The military ruler, indeed, is sovereign in the sense of possessing irresistible coercive power, but in fact this power is only exercised within narrow limits, and not at all in any legislative or judicial way. If exercised beyond these limits and in conflict with customary law, the result would be a general anarchy. The truest way of expressing the state of the case is to say that, taking the term ‘sovereign’ in the sense which we naturally associate with it, and in which it is used by modern European writers on sovereignty, there is under such conditions no sovereign, but that the practical regulation of life, except during intervals of military violence and anarchy, rests with authorities representing the general will, though these are to a certain extent interfered with by an alien force.
89. The same account is applicable to most cases of foreign dominion over a people with any organised common life of their own. The foreign power is not sovereign in the sense of being a maker or maintainer of laws. Law-making, under such conditions, there is properly none. The subject people inherits laws, written or unwritten, and maintains them for itself, a certain shelter from violence being afforded by the foreign power. Such, in the main, was the condition of North Italy, for instance, under Austrian domination. Where this is the case, the removal of the coercive power of the foreigner need not involve anarchy, or any violation of established rights (such as Hobbes supposes to follow necessarily from the deposition of an actual sovereign). The social order does not depend on the foreign dominion, and may survive it. The question whether in any particular case it actually can do so must depend on the possibility of preventing further foreign aggression, and on the question whether there is enough national unity in the subject people to prevent them from breaking up into hostile communities when the foreign dominion is removed.
90. It is otherwise where the foreign power is really a law-making and law-maintaining one, and is sovereign in that proper sense, as was the Roman Empire. But just so far as the Roman Empire was of this sovereign, i.e. law-making and law-maintaining, character, it derived its permanence, its hold on the ‘habitual obedience’ of its subjects, from the support of the general will. As the empire superseded customary or written laws of conquered countries, it conferred rights of Roman citizenship, a much more perfect system of protection in action and acquisition than the conquered people had generally possessed before. Hence, while nothing could be further removed from what Rousseau would have counted liberty than the life of the citizens of the Roman Empire, for they had nothing to do with making the laws which they obeyed, yet probably there was never anv political system more firmly grounded on the good-will of the subjects, none in the maintenance of which the subjects felt a stronger interest. The British power in India exercises a middle function between that of the Roman Empire and that of the mere tax-collecting and recruit-raising empire with which the Roman Empire has just been contrasted. It presents itself to the subject people in the first place as a tax-collector. It leaves the customary law of the people mostly untouched. But if only to a very small extent a law-making power, it is emphatically a law-maintaining one. It regulates the whole judicial administration of the country, but applies its power generally only to enforce the customary law which it finds in existence. For this reason an ‘habitual obedience’ may fairly be said to be rendered by the Indian people to the English government, in a sense in which it could not be said to be rendered to a merely tax-collecting military power; but the ‘habitual obedience’ is so rendered only because the English government presents itself to the people, not merely as a tax-collector, but as the maintainer of a customary law, which, on the whole, is the expression of the general will. The same is true in principle of those independent states which are despotically governed, in which, i.e., the ultimate legislative power does not reside, wholly or in part, with an assembly representing the people, or with the people themselves; e.g. Russia. It is not the absolute coercive power of the Czar which determines the habitual obedience of the people. This coercive power, if put to the test as a coercive power, would probably be found very far from absolute. The habitual obedience is determined by a system of law, chiefly customary, which the administration controlled by the Czar enforces against individuals, but which corresponds to the general sense of what is equitable and necessary. If a despotic government comes into anything like habitual conflict with the unwritten law which represents the general will, its dissolution is beginning.
91. The answer, then, to the question whether there is any truth in Rousseau’s conception of sovereignty as founded upon a ‘volonté générale,’ in its application to actual sovereignty, must depend on what we mean by ‘sovereign.’ The essential thing in political society is a power which guarantees men rights, i.e. a certain freedom of action and acquisition conditionally upon their allowing a like freedom in others. It is but stating the same condition otherwise to speak of a power which guarantees the members of the society these rights, this freedom of action and acquisition, impartially or according to a general will or law. What is the lowest form in which a society is fit to be called political, is hard to say. The political society is more complete as the freedom guaranteed is more complete, both in respect of the persons enjoying it and of the range of possible action and acquisition over which it extends. A family or a nomad horde could not be called a political society, on account of the narrow range of the political freedom which they severally guarantee. The nomad horde might indeed be quite as numerous as a Greek state, or as the sovereign canton of Geneva in Rousseau’s time; but in the horde the range within which reciprocal freedom of action and acquisition is guaranteed to the individual is exceedingly small. It is the power of guaranteeing rights, defined as above, which the old writers on sovereignty and civil government supposed to be established by covenant of all with all, translating the common interest which men have in the maintenance of such a power into an imaginary historical act by which they instituted it. It was this power that they had chiefly in view when they spoke of sovereignty.
92. It is to be observed, however, that the power may very well exist and serve its purpose where it is not sovereign in the sense of being exempt from any liability of being interfered with by a stronger coercive power, such as that of a tax-collecting military ruler. The occasional interference of the military ruler is so far a drawback to the efficiency with which freedom of action and acquisition is guaranteed, but does not nullify the general maintenance of rights. On the other hand, when the power by which rights are guaranteed is sovereign (as it is desirable that it should be) in the special sense of being maintained by a person or persons, and wielding coercive force not liable to control by any other human force, it is not this coercive force that is the important thing about it, or that determines the habitual obedience essential to the real maintenance of rights. That which determines this habitual obedience is a power residing in the common will and reason of men, i.e. in the will and reason of men as determined by social relations, as interested in each other, as acting together for common ends. It is a power which this universal rational will exercises over the inclinations of the individual, and which only needs exceptionally to be backed by coercive force.
93. Thus, though it may be misleading to speak of the general will as anywhere either actually or properly sovereign, because the term ‘sovereign’ is best kept to the ordinary usage in which it signifies a determinate person or persons charged with the supreme coercive function of the state, and the general will does not admit of being vested in a person or persons, yet it is true that the institutions of political society—those by which equal rights are guaranteed to members of such a society—are an expression of, and are maintained by, a general will. The sovereign should be regarded, not in abstraction as the wielder of coercive force, but in connection with the whole complex of institutions of political society. It is as their sustainer, and thus as the agent of the general will, that the sovereign power must be presented to the minds of the people if it is to command habitual loyal obedience; and obedience will scarcely be habitual unless it is loyal, not forced. If once the coercive power, which must always be an incident of sovereignty, becomes the characteristic thing about it in its relation to the people governed, this must indicate one of two things; either that the general interest in the maintenance of equal rights has lost its hold on the people, or that the sovereign no longer adequately fulfils its function of maintaining such rights, and thus has lost the support derived from the general sense of interest in supporting it. It may be doubted whether the former is ever really the case; but whatever explanation of the case may be the true one, it is certain that when the idea of coercive force is that predominantly associated with the law-imposing and law-enforcing power, then either a disruption of the state or a change in the sources of sovereignty must sooner or later take place. In judging, however, whether this is the case, we must not be misled by words. In England, e.g., from the way in which many people speak of ‘government,’ we might suppose that it was looked on mainly as the wielder of coercive force; but it would be a mistake on that account to suppose that English people commonly regard the laws of the country as so much coercion, instead of as an institution in the maintenance of which they are interested. When they speak disapprovingly of ‘government,’ they are not thinking of the general system of law, but of a central administrative agency, which they think interferes mischievously with local and customary administration.
94. It is more true, then, to say that law, as the system of rules by which rights are maintained, is the expression of a general will than that the general will is the sovereign. The sovereign, being a person or persons by whom in the last resort laws are imposed and enforced, in the long run and on the whole is an agent of the general will, contributes to realise that will. Particular laws may, no doubt, be imposed and enforced by the sovereign, which conflict with the general will; not in the sense that if all the subject people could be got together to vote upon them, a majority would vote against them,—that might be or might not be,—but in the sense that they tend to thwart those powers of action, acquisition, and self-development on the part of the members of the society, which there is always a general desire to extend (though the desire may not be enlightened as to the best means to the end), and which it is the business of the law to sustain and extend. The extent to which laws of this kind may be intruded into the general ‘corpus juris’ without social disruption it is impossible to specify. Probably there has never been a civilised state in which they bore more than a very small proportion to the amount of law which there was the strongest general interest in maintaining. But, so far as they go, they always tend to lessen the ‘habitual obedience’ of the people, and thus to make the sovereign cease to be sovereign. The hope must be that this will result in the transfer of sovereignty to other hands before a social disruption ensues; before the general system of law has been so far perverted as to lose its hold on the people. Of the possibility of a change in sovereignty without any detraction from the law-abiding habits of the people, France has lately given a conspicuous example. Here, however, it must be remembered that a temporary foreign conquest made the transition easier.
95. (2) After what has been said, we need not dwell long on the second question raised1 concerning Rousseau’s theory: Is there any truth in speaking of a sovereignty ‘de jure’ founded upon the ‘volonté générale’? It is a distinction which can only be maintained so long as either ‘sovereign’ is not used in a determinate sense, or by ‘jus’ is understood something else than law or right established by law. If by ‘sovereign’ we understand something short of a person or persons holding the supreme law-making and law-enforcing power, e.g. an English king who is often called sovereign, we might say that sovereignty was exercised ‘de facto’ but not ‘de jure’ when the power of such a ‘sovereign’ was in conflict with, or was not sanctioned by, the law as declared and enforced by the really supreme power. Thus an English king, so far as he affected to control the army or raise money without the co-operation of Parliament, might be said to be sovereign ‘de facto’ but not ‘de jure’; only, however, on the supposition that the supreme law-making and law-enforcing power does not belong to him, and thus that he is called ‘sovereign’ in other than the strict sense. If he were sovereign in the full sense ‘de facto,’ he could not fail to be so ‘de jure,’ i.e. legally. In such a state of things, if the antagonism between king and parliament continued for any length of time, it would have to be admitted that there was no sovereign in the sense of a supreme law-making and law-enforcing power; that sovereignty in this sense was in abeyance, and that anarchy prevailed. Or the same thing might be explained by saying that sovereignty still resided ‘de jure’ with the king and parliament, though not ‘de facto’ exercised by them; but if we use such language, we must bear in mind that we are qualifying ‘sovereignty’ by an epithet which neutralises its meaning as an actually supreme power. If, however, the king succeeded in establishing such a power on a permanent footing, he would have become sovereign in the full sense, and there would be no ground for saying, as before, that he was not sovereign ‘de jure’; for the qualifications ‘de jure’ and ‘not de jure,’ in that sense in which they might be applied to a power which is not supreme, are equally inapplicable to the power of making and enforcing law which is supreme. The monarch’s newly established supremacy may be in conflict with laws that were previously in force, but he has only to abolish those laws in order to render it legal. If, then, it is still to be said to be not ‘de jure,’ it must be because ‘jus’ is used for something else than law or right established by law; viz. either for ‘natural right’ (if we admit that there is such a thing), and ‘natural right’ as not merely = natural power; or for certain claims which the members of the subject community have come to recognise as inherent in the community and in themselves as members of it, claims regarded as the foundation of law, not as founded upon it, and with which the commands of the sovereign conflict. But even according to this meaning of ‘jus,’ a sovereign in the strict Austinian sense, that is not so ‘de jure,’ is in the long run an impossibility. ‘Habitual obedience’ cannot be secured in the face of such claims.
96. But whether or no in any qualified sense of ‘sovereign’ or ‘jus,’ a sovereign that is not so ‘de jure’ is possible, once understand by ‘sovereign’ the determinate person or persons with whom the ultimate law-imposing and law-enforcing power resides, and by ‘jus’ law, it is then obviously a contradiction to speak of a sovereign ‘de jure’ as distinguished from one ‘de facto.’ The power of the ultimate imponent of law cannot be derived from, or limited by, law. The sovereign may no doubt by a legislative act of its own lay down rules as to the mode in which its power shall be exercised, but if it is sovereign in the sense supposed, it must always be open to it to alter these rules. There can be no illegality in its doing so. In short, in whatever sense ‘jus’ is derived from the sovereign, in that sense no sovereign can hold his power ‘de jure.’ So Spinoza held that ‘imperium’ was ‘de jure’ indeed, but ‘de jure naturali’ (‘jus naturale’ = natural power), which is the same as ‘de jure divino’; only powers exercised in subordination to ‘imperium’ are ‘de jure civili.’ So Hobbes said that there could be no ‘unjust law.’ A law was not a law unless enacted by a sovereign, and ‘the just’ being that to which the sovereign obliges, the sovereign could not enact the unjust, though it might enact the inequitable and the pernicious, the ‘inequitable’ presumably meaning that which conflicts with a law of nature, the ‘pernicious’ that which tends to weaken individuals or society. Rousseau retains the same notion of the impeccability of the sovereign, but on different grounds. Every act of the sovereign is according to him ‘de jure,’ not because all right is derived from a supreme coercive power and the sovereign is that power, but because the sovereign is the general will, which is necessarily a will for the good of all. The enactment of the sovereign could as little, on this view, be ‘inequitable’ or ‘pernicious’ as it could be ‘unjust.’ But this view necessitates a distinction between the sovereign, thus conceived, and the actually supreme power of making and enforcing law as it exists anywhere but in what Rousseau considered a perfect state. Rousseau indeed generally avoids calling this actually supreme power ‘sovereign,’ though he cannot, as we have seen, altogether avoid it; and since, whatever he liked to call it, the existence of such a power in forms which according to him prevented its equivalence to the general will was almost everywhere a fact, his readers would naturally come to think of the actually supreme power as sovereign ‘de facto,’ in distinction from something else which was sovereign ‘de jure.’ And further, under the influence of Rousseau’s view that the only organ of the general will was an assembly of the whole people, they would naturally regard such an assembly as sovereign ‘de jure,’ and any other power actually supreme as merely sovereign ‘de facto.’ This opposition, however, really arises out of a confusion in the usage of the term ‘sovereign’; out of inability on the one side to hold fast the identification of sovereign with general will, on the other to keep it simply to the sense of the supreme law-making and law-enforcing power. If ‘sovereign’ = ‘general will,’ the distinction of ‘de facto’ and ‘de jure’ is inapplicable to it. A certain desire either is or is not the general will. A certain interest is or is not an interest in the common good. There is no sense in saying that such desire or interest is general will ‘de jure’ but not ‘de facto,’ or vice versa. On the other hand, if ‘sovereign’ = the supreme law-making and law-enforcing power, the distinction is equally inapplicable to it. If any person or persons have this power at all, they cannot be said to have it merely ‘de facto’ while others have it ‘de jure.’
97. It may be urged with much truth that the actual possession of such power by a determinate person or persons is rather a convenient hypothesis of writers on jurisprudence than an actual fact; and, as we have seen, the actual condition of things at certain times in certain states may conveniently be expressed by saying that there was a sovereign ‘de facto’ that was not so ‘de jure,’ or vice versa; but only on the supposition that ‘sovereign’ is not taken necessarily in the full sense of a supreme law-making and law-enforcing power. In a state of things that can be so described, however, there is no ‘sovereignty’ at all in the sense of an actually supreme power of making and enforcing law resident in a determinate person or persons. Sovereignty in this sense can only exist ‘de facto’; and when it so exists, it is obvious that no other can in the same sense exist ‘de jure.’ It may be denied indeed in particular cases that an actually supreme power of making and enforcing law is exercised ‘de jure,’ in a sense of that phrase already explained (see section 95). Reasons were given for doubting whether a power could really maintain its sovereign attributes if conflicting with ‘jus,’ in the sense thus explained. But supposing that it could, the fact that it was not exercised ‘de jure’ would not entitle us to say that any other person or persons were sovereign ‘de jure,’ without altering the meaning of ‘sovereign.’ If any one has supreme power ‘de facto,’ that which any one else has cannot be supreme power. The qualification of a power as held not ‘de facto’ but ‘de jure’ is one which destroys its character as supreme, i.e. as sovereign in the sense before us.
98. It is only through trying to combine under the term ‘sovereign’ the notions of the general will and of supreme power that we are led to speak of the people as sovereign ‘de jure,’ if not ‘de facto.’ There would be no harm indeed in speaking of the general will as sovereign, if the natural association of ‘sovereign’ with supreme coercive power could be got rid of; but as this cannot be, when once we have pronounced the general will ‘sovereign,’ we are pretty sure to identify the general will with a vote of the majority of citizens. A majority of citizens can be conceived as exercising a supreme coercive power, but a general will, in the sense of an unselfish interest in the common good which in various degrees actuates men in their dealings with each other, cannot be so conceived. Thus for the sovereignty, in an impalpable and unnatural sense, of the general will, we get a sovereignty, in the natural and demonstrable sense, of the multitude. But as the multitude is not everywhere supreme, the assertion of its sovereignty has to be put in the form that it is sovereign ‘de jure.’ The truth which underlies this proposition is that an interest in common good is the ground of political society, in the sense that without it no body of people would recognise any authority as having a claim on their common obedience. It is so far as a government represents to them a common good that the subjects are conscious that they ought to obey it, i.e. that obedience to it is a means to an end desirable in itself or absolutely. This truth is latent in Rousseau’s doctrine of the sovereignty of the general will, but he confounds with it the proposition that no government has a claim on obedience, but that which originates in a vote passed by the people themselves who are called on to obey (a vote which must be unanimous in the case of the original compact, and carried by a majority in subsequent cases).
99. This latter doctrine arises out of the delusion of natural right. The individual, it is thought, having a right, not derived from society, to do as he likes, can only forego that right by an act to which he is a party. Therefore he has a right to disregard a law unless it is passed by an assembly of which he has been a member, and by the decision of which he has expressly or tacitly agreed to be bound. Clearly, however, such a natural right of the individual would be violated under most popular sovereignties no less than under one purely monarchical, if he happened to object to the decision of the majority; for to say, as Rousseau says, that he has virtually agreed, by the mere fact of residence in a certain territory, to be bound by the votes of the majority of those occupying that territory, is a mere trick to save appearances. But in truth there is no such natural right to do as one likes irrespectively of society. It is on the relation to a society, to other men recognising a common good, that the individual’s rights depend, as much as the gravity of a body depends on relations to other bodies. A right is a power claimed and recognised as contributory to a common good. A right against society, in distinction from a right to be treated as a member of society, is a contradiction in terms. No one, therefore, has a right to resist a law or ordinance of government, on the ground that it requires him to do what he does not like, and that he has not agreed to submit to the authority from which it proceeds; and if no one person has such a right, no number of persons have it. If the common interest requires it, no right can be alleged against it. Neither can its enactment by popular vote enhance, nor the absence of such vote diminish, its right to be obeyed. Rousseau himself well says that the proper question for each citizen to ask himself in regard to any proposal before the assembly is not, Do I like or approve it? but, Is it according to the general will? which is only another way of asking, Is it according to the general interest? It is only as the organ of this general interest that the popular vote can endow any law with the right to be obeyed; and Rousseau himself, if he could have freed himself from the presuppositions of natural right, might have admitted that, as the popular vote is by no means necessarily an organ of the general interest, so the decree of a monarch or of an aristocratic assembly, under certain conditions, might be such an organ.
100. But it may be asked, Must not the individual judge for himself whether a law is for the common good? and if he decides that it is not, is he not entitled to resist it? Otherwise, not only will laws passed in the interest of individuals or classes, and against the public good, have a claim to our absolute and permanent submission, but a government systematically carried on for the benefit of a few against the many can never be rightfully resisted. To the first part of this question we must of course answer ‘yes,’ without qualification. The degree to which the individual judges for himself of the relation between the common good and the laws which cross the path of his ordinary life, is the measure of his intelligent, as distinguished from a merely instinctive, recognition of rights in others and in the state; and on this recognition again depends his practical understanding of the difference between mere powers and rights as recognised by himself. Supposing then the individual to have decided that some command of a ‘political superior’ is not for the common good, how ought he to act in regard to it? In a country like ours, with a popular government and settled methods of enacting and repealing laws, the answer of common sense is simple and sufficient. He should do all he can by legal methods to get the command cancelled, but till it is cancelled he should conform to it. The common good must suffer more from resistance to a law or to the ordinance of a legal authority, than from the individual’s conformity to a particular law or ordinance that is bad, until its repeal can be obtained. It is thus the social duty of the individual to conform, and he can have no right, as we have seen, that is against his social duty; no right to anything or to do anything that is not involved in the ability to do his duty.
101. But difficulties arise when either (I) it is a case of disputed sovereignty, and in consequence the legal authority of the supposed command is doubtful; or (2) when the government is so conducted that there are no legal means of obtaining the repeal of a law; or (3) when the whole system of a law and government is so perverted by private interests hostile to the public that there has ceased to be any common interest in maintaining it; or (4),—a more frequent case,—when the authority from which the objectionable command proceeds is so easily separable from that on which the maintenance of social order and the fabric of settled rights depends, that it can be resisted without serious detriment to this order and fabric. In such cases, may there not be a right of resistance based on a ‘higher law’ than the command of the ostensible sovereign?
102. (1) As to cases where the legal authority of the supposed command is doubtful. In modern states the definition of sovereignty,—the determination of the person or persons with whom the supreme power of making and enforcing law legally resides,—has only been arrived at by a slow process. The European monarchies have mostly arisen out of the gradual conversion of feudal superiority into sovereignty in the strict sense. Great states, such as Germany and Italy, have been formed by the combination of independent or semi-dependent states. In England the unity of the state goes back much further than anywhere else, but in England it was but gradually that the residence of sovereignty jointly in king, lords, and commons came to be practically established, and it is still founded merely on a customary law. In the United States, with a written constitution, it required all Austin’s subtlety to detect where sovereignty lay, and he places it where probably no ordinary citizen of the United States had ever thought of it as residing, viz. ‘in the states’ governments as forming one aggregate body: meaning by a state’s government, not its ordinary legislature, but the body of citizens which appoints its ordinary legislature, and which, the union apart, is properly sovereign therein.’ He bases this view on the provision in the constitution, according to which amendments to it are only valid ‘when ratified by the legislature in three-fourths of the several states, or by convention in three-fourths thereof.’ (I, p. 268.) But no ordinary citizen of the United States probably ever thought of sovereignty except as residing either in the government of his state or in the federal government consisting of congress and president, or sometimes in one way, sometimes in the other. In other countries, e.g. France, where since Louis XIV the quarter in which sovereignty resides has at any given time been easily assignable, there have since the revolution been such frequent changes in the ostensible sovereign that there might almost at any time have been a case for doubting whether the ostensible sovereign had such command over the habitual obedience of the people as to be a sovereign in that sense in which there is a social duty to obey the sovereign, as the representative of the common interest in social order; whether some prior sovereignty was not really still in force. For these various reasons there have been occasions in the history of all modern states at which men, or bodies of men, without the conscious assertion of any right not founded upon law, might naturally deem themselves entitled to resist an authority which on its part claimed a right—a legally established power—to enforce obedience, and turned out actually to possess the power of doing so.
103. In such cases the truest retrospective account to be given of the matter will often be, that at the time there was nothing amounting to a right on either side. A right is a power of which the exercise by the individual or by some body of men is recognised by a society, either as itself directly essential to a common good, or as conferred by an authority of which the maintenance is recognised as so essential. But in cases of the kind described the authorities, appealed to on each side as justifying respectively compulsion and resistance, often do not command a sufficiently general recognition of their being necessary to the common good to enable them to confer rights of compulsion or resistance. One or other of them may be coming to do so, or ceasing to do so, but rights, though on the one hand they are eternal or at least coeval with human society, on the other hand take time to form themselves in this or that particular subject and to transfer themselves from one subject to another; (just as one may hold reason to be eternal, and yet hold that it takes time for this or that being to become rational.) Hence in periods of conflict between local or customary and imperial or written law, between the constituent powers of a sovereignty, such as king and parliament in England, of which the relation to each other has not become accurately defined, between a falling and a rising sovereign in a period of revolution, between federal and state authorities in a composite state, the facts are best represented by saying that for a time there may be no right on either side in the conflict, and that it is impossible to determine precisely the stage at which there comes to be such a right on the one side as implies a definite resistance to right on the other. This of course is not to be taken to mean that in such periods rights in general are at an end. It is merely that right is in suspense on the particular point at issue between the conflicting powers. As we have seen, the general fabric of rights in any society does not depend on the existence of a definite and ascertained sovereignty, in the restricted sense of the words; on the determination of a person or persons in whom supreme power resides; but on the control of the conduct of men according to certain regular principles by a society recognising common interests; and though such control may be more or less weakened during periods of conflict of the kind supposed, it never ceases.
104. It does not follow, however, because there may often not be strictly a right on either side in such periods of conflict, that there is not a good and an evil, a better and a worse, on one side or the other. Of this we can only judge by reference to the end, whatever it be, in which we conceive the good of man to consist. There may be clear ground for saying, in regard to any conflict, that one side rather than the other ought to have been taken, not because those on one side were, those on the other were not, entitled to say that they had a right to act as they did, but because the common good of a nation or mankind was clearly promoted by one line of action, not by the other. E.g. in the American war of secession, though it would be difficult to say that a man had not as much a right to fight for his seceding state as for the Union, yet as the special interest of the seceding states was that of maintaining slavery, there was reason for holding that the side of the Union, not that of the seceding states, was the one which ought to be taken. On the other hand, it does not follow that in a struggle for sovereignty the good of man is more served by one of the competing powers than by the other. Good may come out of the conflict without one power contributing more to it than the other. There may thus be as little ground retrospectively for saying that one side or the other ought to have been taken, as that men had a right to take one and not the other. At the same time, as regards the individual, there is no reason for doubting that the better the motive which determines him to take this side or that, the more he is actuated in doing so by some unselfish desire for human good, the more free he is from egotism, and that conceit or opinionatedness which is a form of egotism, the more good he will do whichever side he adopts.
105. It is in such cases as we have been considering that the distinction between sovereign ‘de facto’ and sovereign ‘de jure’ arises. It has a natural meaning in the mouths of those who, in resisting some coercive power that claims their obedience, can point to another determinate authority to which they not only consider obedience due, but to which such obedience in some considerable measure is actually rendered; a meaning which it has not when all that can be opposed to sovereign ‘de facto’ is either a ‘general will,’ or the mere name of a fallen dynasty exercising no control over men in their dealings with each other. But where this opposition can be used with a natural meaning, it is a truer account of the matter (as we have seen) to say that sovereignty is in abeyance. The existence of competing powers, each affecting to control men in the same region of outward action, and each having partisans who regard it alone as entitled to exercise such control, implies that there is not that unity of supreme control over the outward actions of men which constitutes sovereignty and which is necessary to the complete organisation of a state. The state has either not reached complete organisation, or is for the time disorganised, the disorganisation being more or less serious according to the degree to which the everyday rights of men (their ordinary freedom of action and acquisition) are interfered with by this want of unity in the supreme control.
106. In such a state of things, the citizen has no rule of ‘right’ (in the strict sense of the word) to guide him. He is pretty sure to think that one or other of the competing powers has a right to his obedience because, being himself interested (not necessarily selfishly interested) in its support, he does not take account of its lacking that general recognition as a power necessary to the common good which is requisite in order to give it a right. But we looking back may see that there was no such right. Was there then nothing to direct him either way? Simply, I should answer, the general rule of looking to the moral good of mankind, to which a necessary means is the organisation of the state, which again requires unity of supreme control, in the common interest, over the outward actions of men. The citizen ought to have resisted or obeyed either of the competing authorities, according as by doing so he contributed most to the organisation of the state in the sense explained. It must be admitted that without more knowledge and foresight than the individual can be expected to possess, this rule, if he had recognised it, could have afforded him no sure guidance; but this is only to say that there are times of political difficulty in which the line of conduct adopted may have the most important effect, but in which it is very hard to know what is the proper line to take. On the other side must be set the consideration that the man who brings with him the character most free from egotism to the decision even of those questions of conduct, as to which established rules of right and wrong are of no avail, is most sure on the whole to take the line which yields the best results.
107. We come next to the question of the possible duty of resistance in cases where no law, acknowledged or half-acknowledged, written or customary, can be appealed to against a command (general or particular) contrary to the public good; where no counter-sovereignty, in the natural sense of the words, can be alleged against that of the imponent of the law; and where at the same time, from the people having no share, direct or indirect, in the government, there is no means of obtaining a repeal of the law by legal means. I say the ‘duty’ of resistance because, from the point of view here adopted, there can be no ‘right,’ unless on the ground that it is for the common good, and if so, there is a duty. In writings of the seventeenth and eighteenth centuries, starting with the assumption of natural rights, the question was never put on its proper footing. It was not asked, When, for the sake of the common good, the citizen ought to resist the sovereign? but, What sort of injury to person or property gave him a natural right to resist? Now there is sense in inquiring upon what sort and amount of provocation from government individuals inevitably will resist; how (in Spinoza’s language) that ‘indignatio’ is excited which leads them ‘in unum conspirare’; but there is none in asking what gives them a right to resist, unless we suppose a wrong done to society in their persons; and then it becomes a question not of right merely, but of duty, whether the wrong done is such as to demand resistance. Now when the question is thus put, no one presumably would deny that under certain conditions there might be a duty of resistance to sovereign power.
108. It is important, however, that instead of discussing the right of a majority to resist, we should discuss the duty of resistance as equally possible for a minority and a majority. There can be no right of a majority of citizens, as such, to resist a sovereign. If by law, written or customary, the majority of citizens possess or share in the sovereign power, then any conflict that may arise between it and any power cannot be a conflict between it and the sovereign. The majority may have a right to resist such a power, but it will not be a right to resist a sovereign. If, on the other hand, the majority of citizens have no share by law or custom in the supreme law-making and law-enforcing power, they never can have a right, simply as a majority, to resist that power.
In such a case, there may arise a social duty to resist, and the exercise of men’s powers in fulfilment of that duty may be sustained by such a general recognition of its being for the public good, as to become a right; but the resistance may be a duty before a majority of the citizens approve it, and does not necessarily become a duty when a majority of them do approve it; while that general recognition of its exercise as being for the common good, through which the power of resistance becomes a right, must be something more habitual and sustained and penetrating than any vote of a majority can convey. Incidentally, however, the consideration of the attitude of the mass of the people in regard to a contemplated resistance to established government must always be most important in determining the question whether the resistance should be made. It should be made, indeed, if at all, not because the majority approve it, but because it is for the public good; but account must be taken of the state of mind of the majority in considering whether it is for the public good or no. The presumption must generally be that resistance to a government is not for the public good when made on grounds which the mass of the people cannot appreciate; and it must be on the presence of a strong and intelligent popular sentiment in favour of resistance that the chance of avoiding anarchy, of replacing the existing government by another effectual for its purpose, must chiefly depend. On the other hand, it is under the worst governments that the public spirit is most crushed; and thus in extreme cases there may be a duty of resistance in the public interest, though there is no hope of the resistance finding efficient popular support. (An instance is the Mazzinian outbreaks in Italy.) Its repeated renewal and repeated failure may afford the only prospect of ultimately arousing the public spirit which is necessary for the maintenance of a government in the public interest. And just as there may thus be a duty of resistance on the part of a hopeless minority, so on the other side resistance even to a monarchic or oligarchic government is not justified by the fact that a majority, perhaps in some temporary fit of irritation or impatience, is ready to support it, if, as may very well be, the objects for which government subsists—the general freedom of action and acquisition and self-development—are likely to suffer from an overthrow of the government in the popular interest.
109. No precise rule, therefore, can be laid down as to the conditions under which resistance to a despotic government becomes a duty. But the general questions which the good citizen should ask himself in contemplating such resistance will be, (a) What prospect is there of resistance to the sovereign power leading to a modification of its character or an improvement in its exercise without its subversion? (b) If it is overthrown, is the temper of the people such, are the influences on which the general maintenance of social order and the fabric of recognised rights depend so far separable from it, that its overthrow will not mean anarchy? (c) If its overthrow does lead to anarchy, is the whole system of law and government so perverted by private interests hostile to the public, that there has ceased to be any common interest in maintaining it?
110. Such questions are so little likely to be impartially considered at a time when resistance to a despotic government is in contemplation, and, however impartially considered, are so intrinsically difficult to answer, that it may seem absurd to dwell on them. No doubt revolutionists do and must to a great extent ‘go it blind.’ Such beneficent revolutions as there have been could not have been if they did not. But in most of those questions of right and wrong in conduct, which have to be settled by consideration of the probable effects of the conduct, the estimate of effects which regulates our approval or disapproval upon a retrospective survey, and according to which we say that an act should or should not have been done, is not one which we could expect the agent himself to have made. The effort to make it would have paralysed his power of action.
111. In the simple cases of moral duty, where there is no real doubt as to the effects of this or that action, and danger arises from interested self-sophistication, we can best decide for ourselves whether we ought to act in this way or that by asking whether it is what is good in us—a disinterested or unselfish motive—that moves us to act in this way or that; and in judging of the actions of others, where the issues and circumstances are simple, the moral question, the question of ‘ought’ or ‘ought not,’ is often best put in the form, How far was the action such as could represent a good character? That indeed is the form in which the question should always be put, when the nature of the case admits it; since, as argued elsewhere [Prol. to Ethics, Bk II, Chaps I and II], it is only in its relation to character that action is in the full sense good or bad. But where the probable effects of a certain line of action are at the time of taking it very obscure, we cannot be sure that relatively the best character will lead a man to take the line which turns out best in the result, or that because a line of action has turned out well in result, the character of the man who adopted it was good. This being so, in judging of the act retrospectively we have to estimate it by the result simply, in abstraction from the character of the agent. Thus in looking back upon a revolutionary outbreak we can only judge whether it was vindicated by the result. If in the light of the result it appears that conditions were not present under which it would have furthered rather than interfered with the true objects of government, we judge that it should not have been made; if otherwise, we approve it,—judge that the persons concerned in it were doing their duty in acting as they did. But whether they were really doing their duty in the full sense of the term in acting as they did in a case when the outbreak was successful, or not doing it in a case where it failed, is what we simply cannot tell; for this depends on the state of character which their action represented, and that is beyond our ken.
112. Such is the necessary imperfection under which all historical judgments labour, though historians are not apt to recognise it and would be thought much more dull if they did. They would have fewer readers if they confined themselves to the analysis of situations, which may be correctly made, and omitted judgments on the morality of individuals for which, in the proper sense, the data can never be forthcoming. We scarcely have them for ourselves (except that we know that we are none of us what we should be), still less for our intimate acquaintance; not at all for men whom we only know through history, past or present, in regard to them, we can only fall back on the generalisation, that the best man—the man most disinterestedly devoted to the perfecting of humanity, in some form or other, in his own person or that of others—is more likely to act in a way that is good as measured by its results, those results again being estimated with reference to an ideal of character, and that this is so even under circumstances of political complication. Appearances to the contrary, appearances of harm done from good motives, may be met by the considerations, (1) that there is often much egotism in what calls itself conscientiousness, and that the ‘conscientious’ motives which lead to mischievous acts may not be in the highest sense disinterested; (2) that to what we call the consequences of an action many influences contribute besides the action which we call the cause, and if evil seems to clog the consequences of action pure in motive, this may be due to other influences connected with motives less worthy, while the consequences which in the rough we call bad might have been worse but for the intervention of the purely-motived action; (3) that the beneficent results are often put to the credit of the actions of selfish men when they should rather be credited to influences more remote and complex, without which those actions would have been impossible or had no good effect, and which have arisen out of unselfish activities. We see the evil in a course of events and lay the blame on someone who should have acted differently, and whom perhaps we take as an instance of how good men cause mischief; but we do not see the greater evil which would otherwise have ensued. In regard to the questions stated above as those which the good citizen should set himself in contemplation of a possible rebellion, though they are questions to which it is impossible for a citizen in the heat of a revolutionary crisis to give a sufficient answer, and which in fact can only be answered after the event, yet they represent objects which the good citizen will set before himself at such times; and in proportion to the amount of good citizenship, as measured by interest in those objects, interest in making the best of existing institutions, in maintaining social order and the general fabric of rights, interest which leads to a bona fide estimate of the value of the existing government in its relation to public good, will be the good result of the political movement.
Notes
1 [Greek θεῖος νοῦς (theios nous) = divine mind or intelligence Tr]
1 ‘If it happened that the prince had a private will more active than that of the sovereign, and that he made use of the public force placed in his hands as the instrument of this private will, there would result, so to speak, two sovereignties, one de jure, the other de facto; but from that moment the social union would disappear, and the body politic would be dissolved.’ (III, i.) ‘When the prince ceases to administer the state according to the laws, and usurps the sovereign power … then the state in the larger sense is dissolved, and there is formed another within it, composed only of the members of the government … the social pact is broken … and all the ordinary citizens return as a matter of right to their state of natural liberty, and are merely forced, but not obliged, to obey.’ (III, X.)
1 Lectures on Jurisprudence, vol. i. p. 88 (edit. of 1869, in two vols.)
1 Cf. Maine’s statement of Austin’s doctrine in The Early History of Institutions, pp. 349 and 350: ‘There is in every independent political community—that is, in every political community not in the habit of obedience to a superior above itself—some single person or some combination of persons which has the power of compelling the other members of the community to do exactly as it pleases. This single person or group—this individual or this collegiate sovereign (to employ Austin’s phrase) may be found in every independent political community as certainly as the centre of gravity in a mass of matter. If the community be violently or voluntarily divided into a number of separate fragments, then, as soon as each fragment has settled down (perhaps after an interval of anarchy) into a state of equilibrium, the sovereign will exist, and with proper care will be discoverable in each of the now independent portions. The sovereignty over the North American colonies of Great Britain had its seat in one place before they became the United States, in another place afterwards; but in both cases there was a discoverable sovereign somewhere. This sovereign, this person or combination of persons, universally occurring in all independent political communities, has in all such communities one characteristic, common to all the shapes sovereignty may take, the possession of irresistible force, not necessarily exerted, but capable of being exerted. According to the terminology preferred by Austin, the sovereign, if a single person, is or should be called a monarch; if a small group, the name is an oligarchy; if a group of considerable dimensions, an aristocracy; if very large and numerous, a democracy. Limited monarchy, a phrase perhaps more fashionable in Austin’s day than it is now, is abhorred by Austin, and the government of Great Britain he classes with aristocracies. That which all the forms of sovereignty have in common is the power (the power but not necessarily the will) to put compulsion without limit on subjects or fellow-subjects.’
1 [Above, sec. 80. RLN]
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