58. As to the second point, from his own conception of what men are in the state of nature, and of the ends for which they found political societies, Locke derives certain necessary limitations of what the supreme power in a commonwealth may rightfully do. The prime business of the political society, once formed, is to establish the legislative power. This is 'sacred and unalterable in the hands where the community have once placed it' (Civ. Gov. XI. Sect. 134); 'unalterable,' that is, as we gather from the sequel, by anything short of an act of the community which originally placed it in these hands. But as men in a state of nature have 'no arbitrary power' over each other (which must mean that according to the 'law of nature' they have no such power), so they cannot transfer any such power to the community nor it to the legislature. No legislature can have the right to destroy, enslave, or designedly impoverish the subjects. And as no legislature can be entitled to do anything which the individual in the state of nature would not by the law of nature be entitled to do, so its great business is to declare the law of nature in general terms and administer it by known authorised judges. The state of nature, Locke seemed to think, would have done very well, but for the inconvenience of every man being judge in his own case of what the law of nature requires. It is to remedy this inconvenience by establishing (1) a settled law, received by common consent, (2) a known and indifferent judge, (3) a power to enforce the decisions of such a judge, that political society is formed.
Hence a legislature violates the 'trust that is put in it' by society unless it observes the following rules: (1) it is to govern 'by promulgated established laws,' not to be varied to suit particular interests; (2) these laws are to be designed only for the good of the people; (3) it must not raise taxes but by consent of the people through themselves or their deputies; (4) it neither 'must, nor can, transfer the power of making laws to anybody else, or place it anywhere but where the people have' (Civ. Gov. XI. Sect. 142).
59. Thus 'the legislative being only a fiduciary power to act for certain ends, there remains still in the people a supreme power to remove or alter the legislature.' Subject to this ultimate 'sovereignty' (a term which Locke does not use) of the people, the legislative is necessarily the supreme power, to which the executive is subordinate. An appearance to the contrary can only arise in cases where (as in England) the supreme executive power is held by a person who has also a share in the legislative. Such a person may 'in a very tolerable sense be called supreme.' It is not, however, to him as supreme legislator (which he is not, but only a participator in supreme legislation) but to him as supreme executor of the law that oaths of allegiance are taken. It is only as executing the law that he can claim obedience, his executive power being, like the power of the legislative, 'a fiduciary trust placed in him' to enforce obedience to law and that only (Civ. Gov. XIII. Sect. 151). This distinction of the supreme power of the people from that of the supreme executive, corresponding to a distinction between the act of transferring individual powers to a society and the subsequent act by which that society establishes a particular form of government, enables Locke to distinguish what Hobbes had confounded, the dissolution of government and the dissolution of political society.
60. He gets rid of Hobbes' notion, that because the 'covenant of all with all,' by which a sovereignty is established, is irrevocable, therefore the government once established is unalterable. He conceives the original pact merely as an agreement to form a civil society, which must indeed have a government, but not necessarily always the same government. The pact is a transfer by individuals of their natural rights to a society, and can only be cancelled through the dissolution of the society by foreign conquest. The delegation by the society of legislative and executive powers to a person or persons is a different matter. The society always retains the right, according to Locke, of resuming the powers thus delegated, and must exercise the light in the event either of the legislative being altered, (placed in different hands from those originally intended), of a collision between its executive and legislative officers, or of a breach between different branches of the legislature (when as in England there are such different branches), or when legislative and executive or either of them 'act contrary to their trust.' He thus in effect vindicates the right of revolution, ascribing to a 'sovereign people' the attributes which Hobbes assigned to a 'person,' single or corporate, on which the people forming a society were supposed by an irrevocable act to have devolved their powers. In other words, he considered the whole civil society in all cases to have the rights which Hobbes would only have allowed it to possess where the government was not a monarchy or aristocracy but a democracy; i.e. where the supreme 'person' upon which all devolve their several 'personae' is an 'assembly of all who will come together.' As such a democracy did not then exist in Europe, any more than it does now, except in some Swiss cantons, the practical difference between the two views was very great. Both Locke and Hobbes wrote with a present political object in view, Hobbes wishing to condemn the Rebellion, Locke to justify the Revolution. For practical purposes, Locke's doctrine is much the better; but if Hobbes' translation of the irrevocableness of the covenant of all with all into the illegitimacy of resistance to an established government in effect entitles any tyrant [l] to do as he likes, on the other hand, it is impossible upon Locke's theory to pronounce when resistance to ade factogovernment is legitimate or otherwise. It would be legitimate according to him when it is an act of the 'sovereign people' (not that Locke uses the phrase), superseding a government which has been false to its trust. But this admitted, all sorts of questions arise as to the means of ascertaining what is and what is not an act of the 'sovereign people.'
[1] According to Hobbes, tyranny = 'monarchy misliked'; oligarchy = 'aristocracy misliked.'
61. The rapid success of the revolution without popular disorder prevented Locke's theory from becoming of importance, but in the presence of such sectarian enthusiasm as existed in Hobbes' time it would have become dangerous. It would not any more than that of Hobbes justify resistance to 'the powers that be' on the part of any body of men short of the civil society acting as a whole, i.e. by a majority. The sectaries of the time of the Rebellion, in pleading a natural or divine right to resist the orders of the government, would have been as much condemned by Locke's theory as by that of Hobbes. But who can say when any popular action by which established powers, legislative or executive, are resisted or altered is an act of the 'sovereign people,' of the civil society acting as a whole, or no. Where government is democratic, in Hobbes' sense, i.e. vested in an assembly of all who will come together, the act of the 'sovereign people' is unmistakeable. It is the act of the majority of such an assembly. But in such a case the difficulty cannot arise. There can be no withdrawal by the sovereign people of power from its legislative or executive representatives, since it has no such representatives. In any other case it would seem impossible to say whether any resistance to, or deposition of, an established legislative or executive is the act of the majority of the society or no Any sectary or revolutionary may plead that he has the 'sovereign people' on his side. If he fails, it is not certain that he has them not on his side; for it may be that, though he has the majority of the society on his side, yet the society has allowed the growth within it of a power which prevents it from giving effect to its will. On the other hand, if the revolution succeeds, it is not certain that it had the majority on its side when it began, though the majority may have come to acquiesce in its result. In short, on Locke's principle that any particular government derives its authority from an act of the society, and society by a like act may recall the authority, how can we ever be entitled to say that such an act has been exercised?
62. It is true that there is no greater difficulty about supposing it to be exercised in the dissolution than in the establishment of a government, indeed not so much; but the act of first establishing a government is thrown back into an indefinite past. It may easily be taken for granted without further inquiry into the conditions of its possibility. On the other hand, as the act of legitimately dissolving a government or superseding one by another has to be imagined as taking place in the present, the inquiry into the conditions of its possibility cannot well be avoided. If we have once assumed with Hobbes and Locke, that the authority of government is derived from a covenant of all with all,—either directly or mediately by a subsequent act in which the covenanted society delegates its powers to a representative or representatives,—it will follow that a like act is required to cancel it; and the difficulties of conceiving such an act under the conditions of the present are so great, that Hobbes' view of the irrevocableness of the original act by which any government was established has much to say for itself. If the authority of any government—its claim on our obedience—is held to be derived not from an original covenant, or from any covenant, but from the function which it serves in maintaining those conditions of freedom which are conditions of the moral life, then no act of the people in revocation of a prior act need be reckoned necessary to justify its dissolution. If it ceases to serve this function, it loses its claim on our obedience. It is a παρέκβασις. [1] (Here again the Greek theory, deriving the authority of government not from consent but from the end which it serves, is sounder than the modern.) Whether or no any particular government has on this ground lost its claim and may be rightly resisted, is a question, no doubt, difficult for the individual to answer with certainty. In the long run, however, it seems generally if not always to answer itself. A government no longer serving the function described—which, it must be remembered, is variously served according to circumstances—brings forces into play which are fatal to it. But if it is difficult upon this theory for the individual to ascertain, as a matter of speculation, whether resistance to an established government is justified or no, at any rate upon this theory such a justification of resistance is possible. Upon Locke's theory, the condition necessary to justify it—viz. an act of the whole people governed—is one which, anywhere except in a Swiss canton, it would be impossible to fulfil. For practical purposes, Locke comes to a right result by ignoring this impossibility. Having supposed the reality of one impossible event,—the establishment of government by compact or by the act of a society founded on compact,—he cancels this error in the result by supposing the possibility of another transaction equally impossible, viz, the collective act of a people dissolving its government.
[1] [Greek παρέκβασις (parekbasis) = a government without a proper basis Tr]
63. It is evident from the chapter (XIX.) on the 'dissolution of government' that he did not seriously contemplate the conditions under which such an act could be exercised. What he was really concerned about was to dispute 'the right divine to govern wrong' on the part of a legislative as much as on the part of an executive power; to maintain the principle that government is only justified by being for the good of the people, and to point out the difference between holding that some government is necessarily for the good of the people, and holding that any particular government is for their good, a difference which Hobbes had ignored. In order to do this, starting with the supposition of an actual deed on the part of a community establishing a government, he had to suppose a reserved right on the part of the community by a like deed to dissolve it. But in the only particular case in which he contemplates a loss by the legislature of its representative character, he does not suggest the establishment of another by an act of the whole people. He saw that the English Parliament in his time could not claim to be such as it could be supposed that the covenanting community originally intended it to be. 'It often comes to pass,' he says, 'in governments where part of the legislative consists of representatives chosen by the people, that in tract of time this representation becomes very unequal and disproportionate to the reasons it was first established upon…. The bare name of a town, of which there remains not so much as the ruins, where scarce so much housing as a sheepcote, or more inhabitants than a shepherd is to be found, sends as many representatives to the grand assembly of law-makers, as a whole county, numerous in people, and powerful in riches. This strangers stand amazed at, and everyone must confess needs a remedy; though most think it hard to find one, because the constitution of the legislative being the original and supreme act of the society antecedent to all positive laws in it, and depending wholly on the people, no inferior power can alter it. And therefore the people, when the legislative is once constituted, having, in such a government as we have been speaking of, no power to act as long as the government stands, this inconvenience is thought incapable of a remedy' (Chapter XIII. Sect. 157). The only remedy which he suggests is not an act of the sovereign people, but an exercise of prerogative on the part of the executive, in the way of redistributing representation, which would be justified by 'salus populi suprema lex.'
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,civitasor 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 astatewhen it is passive, asovereignwhen it is active, apowerwhen compared with similar bodies. The associates are called collectively apeople, severallycitizensas sharing in the sovereign authority,subjectsas 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 heoughtto do, as distinguished from that which he isforcedto 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.
[1] [Greek θεῖος νοῦς (theios nous) = divine mind or intelligence Tr]
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 suchpermanentaccord 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 thereisa 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 isex hypothesito 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 sovereignde factofrom sovereignde 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 sovereignde jure, but that he would have recognised in the ordinary states of his time a sovereignde 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 speak [1] 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 existingde facto, notde 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.
[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, onede jure, the otherde 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.)
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 sovereigntyde jurefounded 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 bypoliticalsuperiors, sovereign and subject; by persons exercising supreme and subordinategovernment, in independent nations, or independent political societies' (pp. 88 and 89). 'The aggregate of the rules established by political superiors is frequently styledpositivelaw, or law existingby 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 'obligesgenerallyto acts or forbearances ofa 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 adeterminatehuman superior,notin a habit of obedience to a like superior, receivehabitualobedience from thebulkof 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. Thegeneralityof the given society must be in ahabitof obedience to adeterminateandcommonsuperior; whilst that determinate person, or determinate body of persons, mustnotbe 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).
[1]Lectures on Jurisprudence, vol. i. p. 88 (edit. of 1869, in two vols.)
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 adeterminateperson 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.
[1] Cf. Maine's statement of Austin's doctrine inThe 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.'
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 anhabitualobedience, 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 sovereignde 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 acoercivepower, 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 raised [1] 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.
[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,' orvice 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.'