[1] [Above, sec. 80. RLN]

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.