¹ It is not implied that all of the confusion arises from the differences between pluralists and monists. The latter disagree among themselves. Some treat law as the product of “sanction,” while others insist that it must be based upon nothing but an “initial hypothesis;” some locate sovereignty in the amending power, while others hold that the constitution is anterior to sovereignty; some assert that there is an important difference between “legal” and “political” sovereignty, while others maintain that such a distinction is “simply the nineteenth century form of an ancient confusion of thought.” Mcllwain, C. H., “Sovereignty Again,” Economica, Vol. 6 (1926), pp. 253–268, at p. 257Google Scholar. For other examples of the variety of views suggested above, see Willoughby, W. W., Fundamental Concepts of Public Law (New York, 1931)Google Scholar, passim, and especially pp. 71–72, and 145–147; Holland, T. E., The Elements of Jurisprudence (10th edition, New York, 1906), p. 16Google Scholar; Kelsen, Hans, “Les Rapports de system entre le droit interne et le droit international public,” in Receuil des Cours, Vol. 14 (1926), pp. 231–329Google Scholar.

² Thus even Mr. Laski now admits, that “any criticism of the pure theory of law … is an endeavor to change its postulates because of a dislike of the results to which they formally lead.” The State in Theory and Practice (New York, 1935), p. 19Google Scholar.

³ Mr.Campbell, Douglas W., in an article entitled “Sovereignty and Social Dynamics” in this Review (Vol. 28, pp. 825–837)Google Scholar, has approached the same problem—or at least the latter half of it—by attempting a redefinition of “sovereignty.” Mr. Campbell sees clearly that in common usage the word “sovereignty” is used to include at least two different meanings, and that the resulting confusion accounts for much of the controversy over the term. His solution is to attempt the formulation of a definition that includes all elements. I must confess that I do not believe he has succeeded. Furthermore, I doubt whether success along that line is possible. He himself points out the difference between what the jurists are trying to do and what the realists are interested in, and, in the quotation from Professor Dickinson (p. 831), gives the basis for the juristic attempt. Experience tells us, however, declares Mr. Campbell, that in fact the ascription to sovereignty of even legal omnipotence will drive certain thinkers, such as Mr. Laski, to define sovereignty in terms of power instead of form.

The fact seems to remain, however, that Mr. Willoughby and Mr. Laski are talking about different things; and it is impossible to avoid this difficulty by trying to concoct a definition that includes them both. This observation, I believe, is borne out by Mr. Campbell's definition. “Sovereignty,” he states, “is that power within a social unit which decides between the rules and regulations which the organization, and force, of the social unit as a unit will sponsor—that is, which both organizes a social unit into a working political unit and denotes that it is a working political unit.” Clearly this does not accomplish the purpose of the jurists, and con-sequently it will drive them to further controversy, just as their definitions stimulate Mr. Laski. In the first place, the very definition of sovereignty as “power” does violence to the juristic concept of it as “legal authority.” Furthermore, the definition is inherently incapable of giving to the concept that element which it is the chief desire of the jurists to attain—precision. It supplies no means of telling whether or not a society possesses sovereignty; or, perhaps, the question would be whether or not a given group constitutes a “social unit” or a “working political unit.” The idea of the inherent limitations placed upon social forces by the necessity of organization, as suggested by Michels, is very valuable, and one which I should like to see developed more fully. It remains, however, a discussion of factors conditioning what you may call “political sovereignty,” if you will, but certainly not aiding in the definition of legal sovereignty. I propose to define sovereignty from the juristic point of view in such a way that the fact that it has nothing directly to do with either power or justice will be apparent to all. In this form, I hope that the concept will be sufficiently innocuous not to lead “anti-absolutists to find it diabolical”!

It is not to be inferred from this that the realm of the jurist is, or can be, completely isolated from that of the social scientist. This comes out clearly in the discussion below of the nature of law, particularly in my rejection of Kelsen's position in this regard. It is, however, in the definition of law, rather than in the concept of sovereignty, that the foundation of juristic formalism upon political and sociological substance can best be worked out.

⁴ Lectures on Jurisprudence (4th ed., London, 1884), p. 226Google Scholar.

⁵ Ibid., p. 99.

⁶ Op. cit. (1832 ed.), p. 241.

⁷ Op. cit., p. 75 (Italics mine).

⁸ Loc. cit. (see note 1), pp. 254–256.

⁹ Op. cit., p. 147.

¹⁰ Referring to the example of the Russian revolution, Kelsen admits that there must be a certain degree of correspondence between norms and facts, which the original norm must reflect in order to be binding. How this can be accounted for in terms of his theory, or even compatibly with it, however, he fails to explain. Der Soziologische und der Juristische Staatsbegriff (Tübingen, 1928), p. 95Google Scholar.

¹¹ “Subsidiary,” that is, to the “original hypothesis.”

¹² Austin, op. cit. (1884 ed.), p. 183.

¹³ The qualifier “political” is used to distinguish the term “law” from scientific laws, “natural law,” moral laws, etc., and at the same time to include non-sovereign law (e.g., international law), which the phrase “positive law” would rule out.

¹⁴ A First Book of Jurisprudence (London, 1896), pp. 22–24Google Scholar.

¹⁵ For examples of laws having such sanctions, and none other, see Malinowski, Bronislaw, Crime and Custom in Savage Society (New York, 1926)Google Scholar, passim.

¹⁶ It is true, of course, that in primitive society, as in modern states, many ethical rules are also political. Thus the rules of exogamy may be considered a matter for social enforcement.

¹⁷ Doubtless the line is vague. But there is a line, certainly, as the example of customary rules of manners demonstrates. See also infra, note 22.

¹⁸ Austin's definition in terms of sanction is, in fact, a particular form of procedural definition. See also the general criticism of this type of theory, supra.

¹⁹ The practical advantages of this test for law as distinguished from custom are ably set forth by Dickinson, John, in “Social Order and Political Authority,” in this Review, Vol. 23 (1929), at pp. 604–608Google Scholar.

²⁰ See Malinowski, op. cit., passim, and especially pp. 76–80.

²¹ If it is argued that now we are in a region where the distinctions between religious, ethical, and political rules have not been developed, one need only reflect that certain rules (e.g., the performance of religious rites) are not considered a matter of social duty, while others are. Some violations, that is, give rise to the rights of certain individuals to take steps. Others are left to the gods for enforcement.

²² Aquinas Ethicus, ed. Rickaby, Joseph (New York, 1892), p. 267Google Scholar.

²³ Ibid., p. 272.

²⁴ Thus he states: “What appears at a given time as a legal rule may perhaps be the result of an inadequate knowledge of the interests concerned or of prejudice in favor of special interests.” The Modern Idea of the State, trans, by Sabine, and Shepard, (New York, 1930), p. 60Google Scholar.

²⁵ Note the qualification, “bulk of.” It is important, and answers the objection to the effect that doubtless few of the Jews in Germany today, for example, recognize any modicum of moral validity in Nazi laws against them.

²⁶ A stimulating discussion of this phenomenon as related to law is to be found in Jellinek, Georg, Allgemeine Staatslehre (3rd ed., Berlin, 1929), pp. 337–344CrossRefGoogle Scholar.

²⁷ Not to mention the fact that the most despotic governments of today appear, at least, to have the widest popular support.

²⁸ Krabbe himself accepted the formal test of majority decision. He justified this by arguing that the sense of right “attaches the highest value vo having a single rule and sacrifices, if necessary, a particular content which might otherwise be preferred;” and by assuming various senses of right to be of equal value. (Op. cit., p. 74 et seg.) But suppose that in a particular case the sense of right of the community does not, in fact, attach supreme value to having a single rule. What then is law? Krabbe's theory either fails entirely to answer this question, or else boils down, after all, to an assertion of the absolute legality of rules created in accordance with the majority principle. In other words, Krabbe failed to work out the relationship between the sense of right based upon the content of a particular rule and that based upon the value of having a single rule. Had he done so, he might have defined law somewhat after this fashion: “Law is that rule that is recognized as right for the reason that others recognize it as right, or for the reason that others obey it.” Thus expressed, it would probably constitute the most plausible formulation of the theory dealt with above. It would even distinguish political from other law. Nevertheless, it would fail, both because some laws are not recognized as “right” in any sense, and also because, even among those that are so recognized, the recognition in many cases bears no relationship to any logical reason for considering the law “right.”

²⁹ A word of explanation is needed here as to the part played by the notion of “political purpose.” Undoubtedly, some measure of political purpose (or believed political purpose) is essential to the concept of law (in the limited sense that any of the elements of this shifting notion are “essential”). It is not dealt with here more fully for two reasons. In the first place, it would not suffice as a definitive test of law, for the definition of “political” involves all the old difficulties dealt with above. In the second place, as an important element of the concept, it has already been included in “recognition of Tightness”; for the most likely way for a régime to secure recognition of ethical value is for it to bear some real or apparent relation to a political purpose—a purpose, that is to say, inclusive of the community as a whole.

³⁰ Even in the absence of “constituted authority,” law (properly so designated) may fail to receive habitual obedience. See Malinowski's examples of the rules of exogamy, and of the father-son relationship among the Trobriand Islanders (op. cit., pp. 76–84 and 100–111). And, for discussions of “law” without organized sanctions in the Middle Ages, see Shepard, Max A., “Sovereignty at the Crossroads,” Political Science Quarterly, Vol. XLV (1930), at pp. 582–585Google Scholar, and McIlwain, C. H., The Growth of Political Thought in the West (New York, 1932), pp. 190 ff. and 365ff.Google Scholar

³¹ Thus, for most practical purposes within the modern state, Willoughby's designation of law as “those rules of conduct that the courts of justice apply in the exercise of their jurisdictions” suffices. Op. cit., p. 143.

³² Binder's criticism of Austin's definition to the effect that it is like defining a man as the vertebrate that customarily occupies northern plains and gets a cold in the head in winter, although a caricature of juristic theory, aptly expresses its essential weakness. Philosophie des Rechts (Berlin, 1925), p. 255Google Scholar.

³³ Note the definition of nationality given in a recent study on the subject. It reads: “Nationality as a quality is the subjective corporate sentiment permanently present in and giving a sense of distinctive unity to the majority of the members of a particular civilized section of humanity, which at the same time objectively constitutes a distinct group by virtue of possessing certain collective attributes peculiar to it, such as homeland, language, religion, history, culture, or traditions.” Joseph, Bernard, Nationality; Its Nature and Problems (New Haven, 1929)Google Scholar.

³⁴ Professor McIlwain's distinction between the “constitution” and the law which the sovereign creates does not seem to me to apply to our modern constitutions, such as that of the United States, wherein the instrument known as the “constitution” not only is law, but also is subordinate to a higher law—the amending clause. I would substitute “fundamental norm” where he uses “constitution.” His theory necessarily follows different lines from those sketched herein because of the fact that he is searching not only for sovereignty but also for a (legal) “sovereign.” See his “A Fragment on Sovereignty,” Political Science Quarterly, Vol. 48 (1930), p. 101Google Scholar and passim.

³⁵ Some writers maintain that the limitation on the amending power does deprive the United States of sovereigaty. This view seems to me to confuse an added intricacy in the amending process with an absolute limitation. The position could be supported, however, by contending that a legal system that required unanimous consent for even the most improbable of possible alterations lacked sovereignty (although, presumably, the requirement of any extraordinary majority short of unanimity would be all right). I am not quite sure which construction more accurately fits the prevailing notion.

³⁶ This is, of course, a purely juristic definition. It is, that is to say, a definition of “legal” sovereignty, not of “political” sovereignty. It may be an unfortunate usage that has given the word “sovereignty” these two different senses; but it is the fact, and I see no point in arbitrarily selecting one of the uses as the “proper” one and ruling out the other. See note 3, supra.

In so far as the idea of self-definition is an addition to Kelsen's formula, it seems to me to be a necessary one. A system of substantive legal rules might, in a sense, be formally complete, yet, if there was no provision for their application to a particular case, according to rules provided for the purpose, the whole body of law could hardly be said to be sovereign. With this addition, it becomes unnecessary to include in the definition of sovereignty any direct reference to a state or political organization, for the necessity of some such machinery is implied in the requirement of self-definition.

³⁷ It is important to note the distinction between ceasing to recognize a rule as law—nullification—and ceasing to consider it morally binding.

³⁸ For summaries of such views regarding international law, see Lauterpacht, H., The Function of Law in the International Community (Oxford, 1933), pp. 400–407Google Scholar.

³⁹ Professor Willoughby himself recognizes the possibility of other constructions than that which begins, as he says, by postulating the state as the fons et origo of law. Op. cit., p. 30.