Front matter (continued 3)

43. The doctrine may be found in Leviathan, Part II., chapter 17. In order 'to erect such a common power as may be able to defend them from the invasion of foreigners and the injuries of one another,' men 'confer all their power and strength upon one man or upon one assembly of men,' … i.e. 'appoint one man or assembly of men to bear their person…. This is more than consent and concord; it is a real unity of them all in one and the same person, made by covenant of every man with every man, in such a manner as if every man should say to every man, 'I authorise, and give up my right of governing myself to this man or this assembly of men, on condition that thou give up thy right to him and authorise all his actions in like manner.' This done, the multitude so united in one person is called a commonwealth, in Latin civitas … which (to define it) is one person, of whose acts a great multitude by mutual covenant one with another have made themselves everyone the author, to the end he may use the strength and means of them all, as he shall think expedient, for their peace and common defence. And he that carrieth this person is called sovereign, and said to have sovereign power; and everyone besides, his subject.'

44. In order to understand the form in which the doctrine is stated, we have to bear in mind the sense in which 'persona' is used by the Roman lawyers, as = either a complex of rights, or the subject (or possessor) of those rights, whether a single individual or a corporate body. In this sense of the word, a man's person is separable from his individual existence as a man. 'Unus homo sustinet plures personas.' A magistrate, e.g., would be one thing in respect of what he is in himself, another thing in respect of his 'persona' or complex of rights belonging to him as a magistrate, and so too a monarch. On the same principle, a man, remaining a man as before, might devolve his 'persona,' the complex of his rights, on another. A son, when by the death of his father according to Roman law he was delivered from 'patria potestas' and became in turn head of a family, acquired a 'persona' which he had not before, the 'persona' which had previously belonged to the father. Again, to take a modern instance, the fellows of a college, as a corporation, form one 'persona,' but each of them would bear other 'persons,' if, e.g., they happened to be magistrates, or simply in respect of their rights as citizens. Thus 'one person' above = one sustainer of rights; while in the second passage, … 'carrieth this person,' it rather = the rights sustained.

45. Hobbes expressly states that the sovereign 'person' may be an assembly of men, but the natural associations of the term, when the sovereign is spoken of as a person, favour the development of a monarchical doctrine of sovereignty.

Sovereign power is attained either by acquisition or institution. By acquisition, when a man makes his children and their children, or a conqueror his enemies, to submit under fear of death. By institution, when men agree among themselves to submit to some man or assembly 'on confidence to be protected against all others.' Hobbes speaks (II. 17, end) as if there were two ways by which a commonwealth and a sovereign defined as above could be brought into existence, but clearly a sovereign by acquisition is not a sovereign in the sense explained. He does not 'carry a person of whose acts a great multitude by mutual covenant one with another, have made themselves everyone the author, to the end he may use the strength and means of them all, as he shall think expedient, for their peace and common defence.' And what Hobbes describes in the sequel (c. 18) are, as he expressly says, rights of sovereigns by institution; but he seems tacitly to assume that every sovereign may claim the same, though he could hardly have supposed that the existing sovereignties were in their origin other than sovereignties by acquisition.

'A commonwealth is said to be instituted, when a multitude of men covenant, everyone with everyone, that to whatsoever man or assembly of men shall be given by the major part the right to represent the person of them all, everyone, as well he that voted for it as he that voted against it, shall authorise all the actions and judgments of that man or assembly of men, in the same manner as if they were his own, to the end to live peaceably amongst themselves, and to be protected against other men' (c. 18). Here a distinction is drawn between the covenant of all with all to be bound by the act of the majority in appointing a sovereign, and that act of appointment itself which is not a covenant of all with all. The natural conclusion would be that it was no violation of the covenant if the majority afterwards transferred the sovereign power to other hands. But in the sequel Hobbes expressly makes out such a transference to be a violation of the original compact. This is an instance of his desire to vindicate the absolute right of a de facto monarch.

46. Throughout these statements we are moving in a region of fiction from which Spinoza keeps clear. Not only is the supposition of the devolution of wills or powers on a sovereign by a covenant historically a fiction (about that no more need be said); the notion of an obligation to observe this covenant, as distinct from a compulsion, is inconsistent with the supposition that there is no right other than power prior to the act by which the sovereign power is established. If there is no such right antecedent to the establishment of the sovereign power, neither can there be any after its establishment except in the sense of a power on the part of individuals which the sovereign power enables them to exercise. This power, or 'jus civile,' cannot itself belong to the sovereign, who enables individuals to exercise it. The only right which can belong to the sovereign is the 'jus naturale,' [1] consisting in the superiority of his power, and this right must be measured by the inability of the subjects to resist. If they can resist, the right has disappeared. In a successful resistance, then, to an ostensibly sovereign power, there can on the given supposition be no wrong done to that power. To say that there is, would be a contradiction in terms. Is such resistance, then, a violation of the 'jus civile' as between the several subject citizens? In the absence of a sovereign power, no doubt, the 'jus civile' (according to the view in question, which makes it depend on the existence of an 'imperium') would cease to exist. But then a successful resistance would simply show that there was no longer such a sovereign power. It would not itself be a violation of 'jus civile,' but simply a proof that the conditions of 'jus civile' were no longer present. It might at the same time be a step to re-establishing them if, besides being a proof that the old 'imperium' no longer exists, it implied such a combination of powers as suffices to establish a new one.

[1] 'The 'jus naturale' is the liberty each man hath to use his own power as he will himself for the preservation of his own nature; that is to say of his own life; and consequently of doing anything which in his own judgment and reason he shall conceive to be the aptest means thereunto.' (Lev., I. 14.)

47. No obligation, then, as distinct from compulsion, to submit to an ostensibly sovereign power can consistently be founded on a theory according to which right either = simple power, or only differs from it, in the form of 'jus civile,' through being a power which an 'imperium' enables individuals to exercise as against each other. Hobbes could not, indeed, have made out his doctrine (of the absolute submission to the sovereign) with any plausibility, if he had stated with the explicitness of Spinoza that 'jus naturale' = 'naturalis potentia.' That it is so is implied in the account of the state of things preceding the establishment of sovereignty as one of 'bellum omnium contra omnes'; for where there is no recognition of a common good, there can be no right in any other sense than power. But where there are no rights but natural power, no obligatory covenant can be made. In order, however, to get a sovereignty, to which there is a perpetual obligation of submission, Hobbes has to suppose a covenant of all with all, preceding the establishment of sovereignty, and to the observance of which, therefore, there cannot be an obligation in the sense that the sovereign punishes for the non-observance (the obligation corresponding to 'jus civile' in Spinoza's sense), but which no one can ever be entitled to break. As the obligatoriness of this covenant, then, cannot be derived from the sovereignty which is established through it, Hobbes has to ascribe it to a 'law of nature' which enjoins 'that men perform their covenants made' (Lev., I. 15). Yet in the immediate sequel of this passage he says expressly, 'The nature of justice consisteth in the keeping of valid covenants, but the validity of covenants begins not but with the constitution of a civil power, sufficient to compel men to keep them; and then it is also that propriety begins.' On this principle the covenant by which a civil power is for the first time constituted cannot be a valid covenant. The men making it are not in a position to make a valid covenant at all. The 'law of nature,' to which alone Hobbes can appeal according to his principles, as the source of the obligatoriness of the covenant of all with all, he defines as a 'precept or general rule, found out by reason, by which a man is forbidden to do that which is destructive of his life, or taketh away the means of preserving the same; and to omit that by which he thinketh it may best be preserved' (I. 14). When a law of nature, however, is said to command or forbid, we must not understand those terms in that sense which, according to Hobbes, could only be derived from the establishment of an 'imperium.' This 'law of nature,' therefore, is merely an expression in a general form of the instinct by which, as Spinoza says, every living creature 'in suo esse perseverare conatur,' as guided by a calculation of consequences (for no meaning but this can be given to 'reason' according to Hobbes). The prohibition, then, by this law of nature of a breach of that covenant of all with all, by which a sovereign power is supposed to be established, can properly mean nothing more than that it is everyone's interest to adhere to it. This, however, could only be a conditional prohibition, conditional, in particular, on the way in which the sovereign power is exercised. Hobbes tries to show that it must always be for the advantage of all to obey it, because not to do so is to return to the state of universal war; but a successful resistance to it must be ipso facto an establishment of a new combined power which prevents the 'bellum omnium contra omnes' from returning. At any rate, an obligation to submit to the established 'imperium,' measured by the self-interest of each in doing so, is quite a different thing from the obligation which Hobbes describes in terms only appropriate (according to his own showing) to contracts between individuals enforced by a sovereign power.

48. It would seem that Hobbes' desire to prove all resistance to established sovereignty unjustifiable leads him to combine inconsistent doctrines. He adopts the notion that men are 'natura hostes,' that 'jus naturale' = mere power, because it illustrates the benefit to man's estate derived from the establishment of a supreme power and the effects of the subversion of such power once established, which he assumes to be equivalent to a return to a state of nature. But this notion does not justify the view that a rebellion, which is strong enough to succeed, is wrong. For this purpose he has to resort to the representation of the sovereign as having a right distinct from power, founded on a contract of all with all, by which sovereignty is established. This representation is quite alien to Spinoza, with whom sovereignty arises, it is true, when 'plures in unum conveniunt,' but in the sense of combining their powers, not of contracting. But after all, the fiction of this contract will not serve the purpose which Hobbes wants it to serve. The sovereignty established by the contract can only have a natural right to be maintained inviolate, for all other right presupposes it, and cannot be presupposed by it. If this natural right means mere power, then upon a successful rebellion it disappears. If it means anything else it must mean that there are natural rights of men, other than their mere power, which are violated by its subversion. But if there are such rights, there must equally be a possibility of collision between the sovereign power and these natural rights, which would justify a resistance to it.

49. It may be asked whether it is worth while to examine the internal consistency of a theory which turns upon what is admitted to be historically a fiction, the supposition of a contract of all with all. There are fictions and fictions however. The supposition that some event took place which as a matter of history did not take place may be a way of conveying an essentially true conception of some moral relation of man. The great objection to the representation of the right of a sovereign power over subjects, and the rights of individuals which are enforced by this 'imperium,' as having arisen out of a contract of all with all, is that it conveys a false notion of rights. It is not merely that the possibility of such a contract being made presupposes just that state of things—a régime of recognised and enforced obligations—which it is assumed to account for. Since those who contract must already have rights, the representation of society with its obligations as formed by contract implies that individuals have certain rights, independently of society and of their functions as members of a society, which they bring with them to the transaction. But such rights abstracted from social function and recognition could only be powers, or (according to Hobbes' definition) liberties to use powers, which comes to the same; i.e. they would not be rights at all; and from no combination or devolution of them could any right in the proper sense, anything more than a combined power, arise.

50. Thus the only logical development of that separation of right from social duty which is implied in the doctrine of 'social contract' is that of Spinoza. Happily the doctrine has not been logically developed by those whose way of thinking has been affected by it. The reduction of political right—the right of the state over its subjects—to superior power, has not been popularly accepted, though the general conception of national right seems pretty much to identify it with power. Among the enlightened, indeed, there has of late appeared a tendency to adopt a theory very like that of Spinoza, without the higher elements which we noticed in Spinoza; to consider all right as a power attained in that 'struggle for existence' to which human 'progress' is reduced. But for one person, who, as a matter of speculation, considers the right of society over him to be a disguised might, there are thousands who, as a matter of practice, regard their own right as independent of that correlation to duty without which it is merely a might. The popular effect of the notion that the individual brings with him into society certain rights which he does not derive from society,—which are other than claims to fulfil freely (i.e. for their own sake) certain functions towards society,—is seen in the inveterate irreverence of the individual towards the state, in the assumption that he has rights against society irrespectively of his fulfilment of any duties to society, that all 'powers that be' are restraints upon his natural freedom which he may rightly defy as far as he safely can.

D. LOCKE.

51. It was chiefly Rousseau who gave that cast to the doctrine of the origin of political obligation in contract, in which it best lends itself to the assertion of rights apart from duties on the part of individuals, in opposition to the counter-fallacy which claims rights for the state irrespectively of its fulfilment of its function as securing the rights of individuals. It is probably true that the Contrat Social had great effect on the founders of American independence, an effect which appears in the terms of the Declaration of Independence and in preambles to the constitutions of some of the original American states. But the essential ideas of Rousseau are to be found in Locke's Treatise of Civil Government, which was probably well known in America for half a century before Rousseau was heard of. [1] Locke again constantly appeals to Hooker's first book on Ecclesiastical Polity,[2] and Grotius[3] argues in exactly the same strain.

Hooker, Grotius, Hobbes, Locke, and Rousseau only differ in their application of the same conception; viz. that men live first in a state of nature, subject to a law of nature, also called the law of reason; that in this state they are in some sense free and equal; that 'finding many inconveniences' in it they covenant with each other to establish a government—a covenant which they are bound by the 'law of nature' to observe—and that out of this covenant the obligation of submission to the 'powers that be' arises. Spinoza alone takes a different line: he does not question the state of nature or the origin of government in a combination of men who find the state of nature 'inconvenient'; but he regards this combination as one of powers directed to a common end, and constituting superior force, not as a covenant which men are bound by the law of nature to observe.

[1] Locke, Civil Government, chap. vii. sec. 87. 'Man, being born with a title to perfect freedom, and an uncontrolled enjoyment of all the rights and privileges of the law of nature, equally with any other man or number of men in the world, hath by nature a power not only to preserve his life, liberty, and estate against … other men; but to judge of and punish the breaches of that law in others…. There, and there only, is political society where every one of the members hath quitted this natural power, resigned it up into the hands of the community in all cases that exclude him not from appealing for protection to the law established by it.'

[2] 'Laws human, of what kind soever, are available by consent,' Hooker, Eccl. Pol. I. 10 (quoted by Locke, l.c. chap. xi. sec. 134). 'To be commanded we do consent, when that society, whereof we be a part, hath at any time before consented, without revoking the same after by the like universal agreement.' Hooker; ibid.

[3] De jure belli et pacis, Proleg. secs. 15 and 16.

52. The common doctrine is so full of ambiguities that it readily lends itself to opposite applications. In the first place 'state of nature' may be understood in most different senses. The one idea common to all the writers who suppose such a state to have preceded that of civil society is a negative one. It was a state which was not one of political society, one in which there was no civil government; i.e. no supreme power, exercised by a single person or plurality of persons, which could compel obedience on the part of all members of a society, and was recognised as entitled to do so by them all, or by a sufficient number of them to secure general obedience. But was it one of society at all? Was it one in which men had no dealings with each other except in the way of one struggling to make another serve his will and to get for himself what the other had, or was it one in which there were ties of personal affection and common interest, and recognised obligations, between man and man? Evidently among those who spoke of a state of nature, there were very various and wavering conceptions on this point. They are apt to make an absolute opposition between the state of nature and the political state, and to represent men as having suddenly contracted themselves out of one into the other. Yet evidently the contract would have been impossible unless society in a form very like that distinctively called political had been in existence beforehand. If political society is to be supposed to have originated in a pact at all, the difference between it and the preceding state of nature cannot, with any plausibility, be held to have been much more than a difference between a society regulated by written law and officers with defined power and one regulated by customs and tacitly recognised authority.

53. Again, it was held that in a state of nature men were 'free and equal.' This is maintained by Hobbes as much as by the founders of American independence. But if freedom is to be understood in the sense in which most of these writers seem to understand it, as a power of executing, of giving effect to, one's will, the amount of freedom possessed in a state of nature, if that was a state of detachment and collision between individuals, must have been very small. Men must have been constantly thwarting each other, and (in the absence of that 'jus in naturam,' as Spinoza calls it, which combination gives) thwarted by powers of nature. In such a state those only could be free, in the sense supposed, who were not equal to the rest; who, in virtue of superior power, could use the rest. But whether we suppose an even balance of weaknesses, in subjection to the crushing forces of nature, or a dominion of few over many by means of superior strength, in such a state of nature no general pact would be possible. No equality in freedom is possible except for members of a society of whom each recognises a good of the whole which is also his own, and to which the free co-operation of all is necessary. But if such society is supposed in the state of nature—and otherwise the 'pact' establishing political society would be impossible—it is already in principle the same as political society.

54. It is not always certain whether the writers in question considered men to be actually free and equal in the state of nature, or only so according to the 'law of nature,' which might or might not be observed. (Hobbes represents the freedom and equality in the state of nature as actual, and this state as being for that reason 'bellum omnium contra omnes.') They all, however, implicitly assume a consciousness of the law of nature in the state of nature. It is thus not a law of nature in the sense in which we commonly use the term. It is not a law according to which the agents subject to it act necessarily but without consciousness of the law. It is a law of which the agent subject to it has a consciousness, but one according to which he may or may not act; i.e. one according to which he ought to act. It is from it that the obligation to submission to civil government, according to all these writers, is derived. But in regard to such a law, two questions have to be asked: firstly, how can the consciousness of obligation arise without recognition by the individual of claims on the part of others—social claims in some form or other—which may be opposed to his momentary inclinations? and secondly, given a society of men capable of such a consciousness of obligation, constituting a law according to which the members of the society are free and equal, in what does it differ from a political society? If these questions had been fairly considered, it must have been seen that the distinction between a political society and a state of nature, governed by such a law of nature, was untenable; that a state of things out of which political society could have arisen by compact, must have been one in which the individual regarded himself as a member of a society which has claims on him and on which he has claims, and that such society is already in principle a political society. But the ambiguity attending the conception of the law of nature prevented them from being considered. When the writers in question spoke of a law of nature, to which men in the state of nature were subject, they did not make it clear to themselves that this law, as understood by them, could not exist at all without there being some recognition or consciousness of it on the part of those subject to it. The designation of it as 'law of nature' or 'law of God' helped to disguise the fact that there was no imponent of it, in the sense in which a law is imposed on individuals by a political superior. In the absence of such an imponent, unless it is either a uniformity in the relations of natural events or an irresistible force—and it is not represented in either of these ways in juristic writings—it can only mean a recognition of obligation arising in the consciousness of the individual from his relations to society. But this not being clearly realised, it was possible to represent the law of nature as antecedent to the laws imposed by a political superior, without its being observed that this implied the antecedence of a condition of things in which the result supposed to be obtained through the formation of political society—the establishment, viz. of reciprocal claims to freedom and equality on the part of members of a society—already existed.

55. In fact, the condition of society in which it could properly be said to be governed by a law of nature, i.e. by an obligation of which there is no imponent but the consciousness of man, an obligation of which the breach is not punished by a political superior, is not antecedent to political society, but one which it gradually tends to produce. It is the radical fault of the theory which finds the origin of political society in compact, that it has to reverse the true process. To account for the possibility of the compact of all with all, it has to assume a society subject to a law of nature, prescribing the freedom and equality of all. But a society governed by such a law as a law of nature, i.e. with no imponent but man's consciousness, would have been one from which political society would have been a decline, one in which there could have been no motive to the establishment of civil government. Thus this theory must needs be false to itself in one of two ways. Either it is false to the conception of a law of nature, with its prescription of freedom and equality, as governing the state of things prior to the compact by which political society is established, only introducing the law of nature as the ground of the obligatoriness of that compact, but treating the state of nature as one of universal war in which no reciprocal claims of any sort were recognised, (so Hobbes); or just so far as it realises the conception of a society governed by a law of nature, as equivalent to that spontaneous recognition by each of the claims of all others, without which the covenant of all with all is in fact unaccountable, it does away with any appearance of necessity for the transition from the state of nature to that of political society and tends to represent the latter as a decline from the former. This result is seen in Rousseau; but to a great extent Rousseau had been anticipated by Locke. The broad differences between Locke and Hobbes in their development of the common doctrine, are (1) that Locke denies that the state of nature is a state of war, and (2) that Locke distinguishes the act by which political society is established from that by which the government, legislative and executive, is established, and is consequently able to distinguish the dissolution of the political society from the dissolution of the government (Civ. Gov. Chapter XIX. Sect. 211).

56. The 'state of nature' and the 'state of war' 'are so far distant as a state of peace, good-will, mutual assistance and preservation, and a state of enmity, malice, violence, and mutual destruction, are from one another. Men living together, according to reason, without a common superior on earth with authority to judge between them, is properly the state of nature. But force, or a declared design of force, upon the person of another, where there is no common superior on earth to appeal to for relief, is the state of war' (Civ. Gov. III. Sect. 19). In the state of nature, however, when the state of war has once begun, there is not the same means of terminating it as in civil society.

The right of war may belong to a man, 'though he be in society and a fellow-subject,' when his person or property is in such immediate danger that it is impossible to appeal for relief to the common superior. 'But when the actual force is over, the state of war ceases between those that are in society … because there lies the remedy of appeal for the past injury and to prevent future harm.' In the state of nature, when the state of war has once begun, it continues until the aggressor offers peace and reparation. The state of war, though not proper to the state of nature, is a frequent incident of it, and to avoid it is one great reason of men's putting themselves into society (ib. Sect. 21). The state of nature is not one that is altogether over and done with. 'All rulers of independent governments all through the world are in a state of nature.' The members of one state in dealing with those of another are in a state of nature, and the law of nature alone binds them. 'For truth and keeping of faith belongs to men as men, and not as members of society' (Civ. Gov. II. Sect. 14). 'All men are naturally in that state and remain so till by their own consents they make themselves members of some politic society' (ib. Sect. 15).

57. The antithesis, as put above, between the state of nature and the state of war, can only be maintained on the supposition that the 'law of nature' is observed in a state of nature. Locke does not explicitly state that this is the case. If it were so, it would not appear how the state of war should arise in the state of nature. But he evidently thought of the state of nature as one in which men recognised the law of nature, though without fully observing it. He quotes with approval from Hooker language which implies that not only is the state of nature a state of equality, but that in it there is such consciousness of equality with each other on the part of men that they recognise the principle 'do as you would be done by' (Civ. Gov. II. Sect. 5). With Hobbes, in the supposed state of nature the 'law of nature' is emphatically not observed, and hence it is a state of war. As has been pointed out above, a 'law of nature' in the sense in which these writers use the term, as a law which obliges but yet has no imponent in the shape of a sovereign power, is, as Locke says (Sect. 136), 'nowhere to be found but in the minds of men'; it can only have its being in the consciousness of those subject to it. If therefore we are to suppose a state of nature in which such a law of nature exists, it is more consistent to conceive it in Locke's way than in that of Hobbes; more consistent to conceive it as one in which men recognise duties to each other than as a 'bellum omnium contra omnes.'

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 a de facto government 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.'

E. ROUSSEAU.

64. That 'sovereignty of the people,' which Locke looks upon as held in reserve after its original exercise in the establishment of government, only to be asserted in the event of a legislature proving false to its trust, Rousseau supposes to be in constant exercise. Previous writers had thought of the political society or commonwealth, upon its formation by compact, as instituting a sovereign. They differed chiefly on the point whether the society afterwards had or had not a right of displacing an established sovereign. Rousseau does not think of the society, civitas or commonwealth, as thus instituting a sovereign, but as itself in the act of its formation becoming a sovereign and ever after continuing so.

65. In his conception of a state of nature, Rousseau does not differ from Locke. He conceives the motive for passing out of it, however, somewhat differently and more after the manner of Spinoza. With Locke the motive is chiefly a sense of the desirability of having an impartial judge, and efficient enforcement of the law of nature. According to Rousseau, some pact takes place when men find the hindrances to their preservation in a state of nature too strong for the forces which each individual can bring to bear against them. This recalls Spinoza's view of the 'jus in naturam' as acquired by a combination of the forces of individuals in civil society.

66. The 'problem of which the social contract is a solution' Rousseau states thus: 'To find a form of association which protects with the whole common force the person and property of each associate, and in virtue of which everyone, while uniting himself to all, only obeys himself and remains as free as before.' (Contrat Social, I, vi.) The terms of the contract which solves this problem Rousseau states thus: 'Each of us throws into the common stock his person and all his faculties under the supreme direction of the general will; and we accept each member as an individual part of the whole…. There results from this act of association, in place of the several persons of the several contracting parties, a collective moral body, composed of as many members as there are voices in the assembly, which body receives from this act its unity, its common self, its life, and its will…. It is called by its members a state when it is passive, a sovereign when it is active, a power when compared with similar bodies. The associates are called collectively a people, severally citizens as sharing in the sovereign authority, subjects as submitted to the laws of the state.' (Ib.) Each of them is under an obligation in two relations, 'as a member of the sovereign body towards the individuals, and as a member of the state towards the sovereign.' All the subjects can by a public vote be placed under a particular obligation towards the sovereign, but the sovereign cannot thus incur an obligation towards itself. It cannot impose any law upon itself which it cannot cancel. Nor is there need to restrict its powers in the interest of the subjects. For the sovereign body, being formed only of the individuals which constitute it, can have no interest contrary to theirs. 'From the mere fact of its existence, it is always all that it ought to be' (since, from the very fact of its institution, all merely private interests are lost in it). On the other hand, the will of the individual (his particular interest as founded upon his particular desires) may very well conflict with that general will which constitutes the sovereign. Hence the social pact necessarily involves a tacit agreement, that anyone refusing to conform to the general will shall be forced to do so by the whole body politic; in other words, 'shall be forced to be free,' since the universal conformity to the general will is the guarantee to each individual of freedom from dependence on any other person or persons. (I, vii.)

67. The result to the individual may be stated thus. He exchanges the natural liberty to do and get what he can, a liberty limited by his relative strength, for a liberty at once limited and secured by the general will; he exchanges the mere possession of such things as he can get, a possession which is the effect of force, for a property founded on a positive title, on the guarantee of society. At the same time he becomes a moral agent. Justice instead of instinct becomes the guide of his actions. For the moral slavery to appetite he substitutes the moral freedom which consists in obedience to a self-imposed law. Now for the first time it can be said that there is anything which he ought to do, as distinguished from that which he is forced to do. (I, viii.)

68. Such language makes it clear that the sovereignty of which Rousseau discusses the origin and attributes, is something essentially different from the supreme coercive power which previous writers on the 'jus civile' had in view. A contemporary of Hobbes had said that

'there's on earth a yet auguster thing, Veiled though it be, than Parliament and King.'

It is to this 'auguster thing,' not to such supreme power as English lawyers held to be vested in 'Parliament and King,' that Rousseau's account of the sovereign is really applicable. What he says of it is what Plato or Aristotle might have said of the θεῖος νοῦς, [1] which is the source of the laws and discipline of the ideal polity, and what a follower of Kant might say of the 'pure practical reason,' which renders the individual obedient to a law of which he regards himself, in virtue of his reason, as the author, and causes him to treat humanity equally in the person of others and in his own always as an end, never merely as a means. But all the while Rousseau himself thinks that he is treating of the sovereign in the ordinary sense; in the sense of some power of which it could be reasonably asked how it was established in the part where it resides, when and by whom and in what way it is exercised. A reader of him who is more or less familiar with the legal conception of sovereignty, but not at all with that of practical reason or of a 'general will.' a common ego, which wills nothing but what is for the common good, is pretty sure to retain the idea of supreme coercive power as the attribute of sovereignty, and to ignore the attribute of pure disinterestedness, which, according to Rousseau, must characterise every act that can be ascribed to the sovereign.

[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 such permanent accord is impossible. (Ib.) Again, a general will is from the nature of the case indivisible. It is commonly held to be divided, not, indeed, in respect of its source, but in respect of the objects to which its acts are directed, e.g. into legislative and executive powers; into rights of taxation, of war, of justice, &c. But this supposed division of sovereign powers or rights implies that 'what are only emanations from the sovereign authority are taken to be parts of it.' (II, ii.) The only exercise of sovereign power, properly so called, is in legislation, and there is no proper act of legislation except when the whole people comes to a decision with reference to the whole people. Then the matter decided on is as general as the will which decides on it; and this is what constitutes a law. (II, vi.) By this consideration several questions are answered. Whose office is it to make laws? It is that of the general will, which can neither be alienated nor represented. Is the prince above the law? The answer is, He is a member of the state, and cannot be so. Can the law be unjust? No one can be unjust to himself: therefore not the whole people to the whole people. How can we be free and yet subject to the laws? The laws are the register of our own will. (Ib.) Laws, in short, are properly those general 'conditions of civil association' which the associates impose on themselves. Where either of the specified conditions is lacking, where either it is not the universal will from which an ordinance proceeds or it is not the whole people to which it relates, it is not a law but a decree, not an act of sovereignty but of magistracy. (Ib.)

71. This leads to a consideration of the nature and institution of magistracy or government. (III, i.) The government is never the same as the sovereign. The two are distinguished by their functions, that of the one being legislative, that of the other executive. Even where the people itself governs, its acts of government must be distinguished from its acts of sovereignty, the former having a particular, the latter a general, reference. Government is the exercise according to law of the executive power, and the 'prince' or 'magistrate' is the man or body of men charged with this administration; 'a body intermediary between the subjects and the sovereign, charged with the execution of the laws, and with the maintenance of civil and political freedom' (Ib.) Where all or most of the citizens are magistrates, or charged with the supreme functions of government, we have a democracy; where a few, an aristocracy; where one is so charged, a monarchy. (III, iii.) The differences depend, not as Hobbes and others had supposed, on the quarter where the sovereignty resides—for it must always reside in the whole body of people—but on that in which government resides. The idea of government is that the dominant will of the prince should be the general will or law, that it should be simply the public force by which that general will is brought to bear on individuals or against other states, serving the same purpose in the state as the union of soul and body in the individual (III, i.); and this idea is most likely to be satisfied under a democracy. There, the general will (if there is a general will, which the democracy is no guarantee for there being, according to Rousseau's distinction between the 'volonté générale' and 'volonté de tous,' of which more hereafter) cannot fail to coincide with the dominant will of the government. The prevalence of particular interests may prevent there being a will at all of the kind which Rousseau would count general or truly sovereign, but they cannot be more prevalent in the magistracy, constituted by the whole people, than in the same people acting in the way of legislation. In a democracy, therefore, the will of the sovereign, so far as there is a sovereign in the proper sense, necessarily finds expression in the will of the magistracy. On the other hand, though under either of the other forms of government there is danger of collision between sovereign and government, yet the force of the government is greater than in a democracy. It is greatest when the government is a monarchy, because under all other forms there is more or less discrepancy between the individual wills of the several persons composing the government, as directed to the particular good of each, and the corporate will of the government of which the object is its own efficiency, and under a monarchy this source of weakness is avoided. (III, ii.) As there is more need of force in the government in proportion to the number of subjects whose particular wills it has to control, it follows that monarchy is best suited to the largest, democracy to the smallest states. (III, iii.)

72. As to the institution of government, Rousseau maintains strenuously that it is not established by contract. 'There is only one contract in the state, viz. that of the original association; and this excludes every other. No other public contract can be imagined which would not be a violation of the first.' (III, xvi.) Even when government is vested in an hereditary body, monarchic or aristocratic, this is merely a provisional arrangement, made and liable to be reversed by the sovereign, whose officers the governors are. The act by which government is established is twofold, consisting firstly of the passing of a law by the sovereign, to the effect that there shall be a government; secondly, of an act in execution of this law, by which the governors—the 'magistrates'—are appointed. But it may be asked, How can the latter act, being one not of sovereignty but of magistracy (for it has a particular reference in the designation of the governors), be performed when as yet there is no government? The answer is that the people resolves itself from a sovereign body into a body of magistrates, as the English Parliament resolves itself constantly from a legislative body into a committee. In other words, by a simple act of the general will a democracy is for the time established, which then proceeds either to retain the government in its own hands, or to place it in those of an officer, according to the form in which the sovereign has decided to establish the government. (III, xvii.) Acts similar to that by which the government was originally constituted need to be periodically repeated in order to prevent the government from usurping the functions of the sovereign, i.e. the function of legislation. (Could this usurpation occur under a democracy?) In order that the sovereignty may not fall into abeyance, it must be exercised, and it can only be exercised in assemblies of the whole people. These must be held periodically, and at their opening two questions ought to be submitted; one, whether it pleases the sovereign to maintain the present form of government; the other, whether it pleases the people to leave the administration in the hands of those at present charged with it. (III, xviii.) Such assemblies are entitled to revise and repeal all previously enacted laws. A law not so repealed the sovereign must be taken tacitly to confirm, and it retains its authority. But as the true sovereign is not any law but the general will, no law, even the most fundamental, can be exempt from liability to repeal. Even the social pact itself might legitimately be dissolved, by agreement of all the citizens assembled. (Ib.) (Whether unanimity is necessary for the purpose is not specified.) Without such assemblies there can be no exercise of the general will (which, as before stated, cannot be represented), and consequently no freedom. The English people, e.g., is quite mistaken in thinking itself free. It is only free while the election of members of Parliament is going on. As soon as they are elected, it is in bondage, it is nothing. In the short moments of its freedom it makes such a bad use of it that it well deserves to lose it. (III, xv.)

73. It appears from the above that, according to Rousseau, the general will, which is the true sovereign, can only be exercised in assemblies of the whole people. On the other hand, he does not hold that an act of such an assembly is necessarily an act of the general will. After telling us that the 'general will is always right, and always tends to the public good,' he adds, 'but it does not follow that the deliberations of the people have always the same rectitude…. There is often a great difference between the will of all and the general will. The latter only looks to the common interest; the other looks to private interests, and is only a sum of the wills of individuals.' (II, iii.) Again (II, iv.), 'that which generalises the will is not so much the number of voices as the common interest which unites them.' He holds apparently that in the assembly of the whole people, if they had sufficient information, and if no minor combinations of particular interests were formed within the entire body, the difference between the wills of individuals would neutralise each other, and the vote of the whole body would express the true general will. But in fact in all assemblies there is at least a liability to lack of information and to the formation of cliques; and hence it cannot be held that the vote of the assembly necessarily expresses the general will. Rousseau, however, does not go so far as to say that unless the law is actually such as contributes to the common good, it is not an expression of the general will. The general will, according to him, always aims at or wills the common good, but is liable to be mistaken as to the means of attaining it.' It is always right, but the judgment which guides it is not always enlightened…. Individuals see the good which they reject; the public wills the good which it does not see.' (II, vi.) Hence the need of a guide in the shape of a great lawgiver. Apparently, however, the possible lack of enlightenment on the part of the general will does not, in Rousseau's view, prevent its decisions from being for the public good. In discussing the 'limits of the sovereign power' he maintains that there can be no conflict between it and the natural right of the individual, because, 'although it is only that part of his power, his goods, his freedom, of which the use is important to the community, that the individual transfers to the sovereign by the social pact, yet the sovereign alone can be judge of the importance'; and the sovereign 'cannot lay on the subjects any constraint which is not for the good of the community.' 'Under the law of reason' (which is thus identified with the general will) 'nothing is done without a cause, any more than under the law of nature.' (II, iv.)

74. But though even an unenlightened general will is the general will still, and (as we are left to infer) cannot in its decisions do otherwise than promote the public good, Rousseau distinctly contemplates the possibility of the general will being so overpowered by particular interests that it finds no expression in the votes of a popular assembly, though the assembly be really one of a whole people, and the vote of the majority is duly taken. (IV, i.) In such cases it is not that the general will is 'annihilated or corrupted; it is always constant, unalterable, and pure.' Even in the individual whose vote is governed by his private interest the general will is not extinct, nor is he unaware either of what the public good requires or of the fact that what is for the public good is also for his own. But his share in the public evil to which he knows that his vote will contribute, seems nothing by the side of the special private good which he hopes to gain. By his vote, in short, he does not answer the question, Is so and so for the advantage of the state? but, Is it for the advantage of this particular man or party? (Ib.)

75. The test of the dominance of the general will in assemblies of the people is an approach to unanimity. 'Long debates, discussions, tumult, indicate the ascendency of particular interests and the decline of the state.' (IV, ii.) Rousseau, however, does not venture to say that absolute unanimity in the assembly is necessary to an expression of the general will, or to give a law a claim upon the obedience of the subjects. This would have been to render effectual legislation impossible. Upon the theory, however, of the foundation of legitimate sovereignty in consent, the theory that the natural right of the individual is violated unless he is himself a joint imponent of the law which he is called to obey, it is not easy to see what rightful claim there can be to the submission of a minority. Rousseau so far recognises the difficulty that he requires unanimity in the original compact. (IV, ii.) If among those who are parties to it there are others who oppose it, the result is simply that the latter are not included in it. 'They are strangers among the citizens.' But this does not explain how they are to be rightfully controlled, on the principle that the only rightful control is founded on consent; or, if they are not controlled, what is the value of the 'social compact.' How can the object of the pact be attained while those who are bound by it have these 'strangers' living among them who are not bound by it, and who, not being bound by it, cannot be rightfully controlled? The difficulty must recur with each generation of the descendants of those who were parties to the original pact. The parties to the pact, it is true, have no right to resist the general will, because the pact is ex hypothesi to the effect that each individual, in all things of common concern, will take the general will for his own. The true form, therefore, of the question upon which each party to the pact should consider himself to be voting in the assembly is, as Rousseau puts it, not 'Is the proposed measure what I wish for, or what I approve, or no?' but 'Is it in conformity with the general will?' If, having voted upon this question, he finds himself in a minority, he is bound to suppose that he is mistaken in his views of the general will, and to accept the decision of the majority as the general will which, by the pact, he is bound to obey. So far all is consistent; though how the individual is to be answered if he pleads that the vote of the assembly has been too much biassed by particular interests to be an expression of the general will, and that therefore it is not binding on him, does not appear.

76. But after the first generation of those who were parties to the supposed original compact, what is to settle whether anyone is a party to it or no? Rousseau faces the question, but his only answer is that when once the state is instituted, consent is implied in residence; 'to dwell on the territory is to submit to the sovereignty.' (IV, ii.) This answer, however, will scarcely stand examination. Rousseau himself does not consider that residence in the same region with the original parties to the pact renders those so resident also parties to it. Why should it do so, when the pact has descended to a later generation? It may be argued of course that everyone residing in a settled society, which secures him in his rights of person and property, has the benefit of the society from the mere fact of his residence in it, and is therefore morally bound to accept its laws. But this is to abandon the doctrine of obligation being founded on consent. Residence in a territory governed by a certain sovereign can only be taken to imply consent to the rule of that sovereign, if there is any real possibility of relinquishing it, and this there can scarcely ever be.

77. Rousseau certainly carried out the attempt to reconcile submission to government with the existence of natural rights antecedent to the institution of government, by the hypothesis of a foundation of government in consent, more consistently than any other writer; and his result shows the hopelessness of the attempt. To the consistency of his theory he sacrifices every claim to right on the part of any state except one in which the whole body of citizens directly legislates, i.e. on the part of nearly all states then or now existing; and finally he can only justify the control of the minority by the majority in any state whatever by a subterfuge. It does not follow, however, because the doctrine of natural rights and the consequent conception of government as founded on compact are untenable, that there is no truth in the conception of the state or sovereign as representing a general will, and as authorised or entitled to obedience on that account. It is this conception, as the permanently valuable thing in Rousseau, that we have now further to consider.

78. The first remark upon it which suggests itself is that, as Rousseau puts the matter, there may be an independent political society in which there is no sovereign power at all, or in which, at any rate, it is not exercised. The sovereign is the general will. But the general will can only be exercised through the assembly of a whole people. The necessary conditions of its exercise, then, in Rousseau's time, were only fulfilled in the Swiss cantons and (perhaps) in the United Provinces. In England they were fulfilled in a way during the time of a general election. But even where these conditions were fulfilled, it did not follow that the general will was put in force. It might be overpowered, as in the Roman comitia, by particular interests. Is it then to be understood that, according to Rousseau, either there can be independent states without any sovereignty in actual exercise, or that the European states of his time, and equally the great states of the present day (for in none of these is there any more exercise of the general will than in the England of his time), are not properly states at all?

79. We may try to answer this question by distinguishing sovereign de facto from sovereign de jure, and saying that what Rousseau meant was that the general will, as defined by him and as exercised under the conditions which he prescribes, was the only sovereign de jure, but that he would have recognised in the ordinary states of his time a sovereign de facto; and that in the same way, when he describes the institution of government as arising out of a twofold act consequent on the original pact (an act in which the sovereign people first decides that there shall be a government, and then, not as a sovereign people, but as a democratic magistracy, decides in what hands the government shall be placed), he does not conceive himself to be describing what has actually taken place, but what is necessary to give a government a moral title to obedience. Whether Rousseau himself had this distinction in view is not always clear. At the outset he states his object thus: 'Man is born free, and everywhere he is in fetters. How has this change come about? I do not know. What can render it legitimate? That is a question which I deem myself able to answer.' (I, i.) The answer is the account of the establishment of a sovereign by social pact. It might be inferred from this that he considered himself in the sequel to be delineating transactions to the actual occurrence of which he did not commit himself, but which, if they did occur, would constitute a duty as distinct from a physical necessity of submission on the part of subjects to a sovereign, and to which some equivalent must be supposed, in the shape of a tacit present convention on the part of the members of a state, if their submission is to be matter of duty as distinct from physical necessity, or is to be explained as a matter of right by the ostensible sovereign. This, however, would merely be an inference as to his meaning. His actual procedure is to describe transactions, by which the sovereignty of the general will was established, and by which it in turn established a government, as if they had actually taken place. Nor is he content with supposing a tacit consent of the people as rendering subjection legitimate. The people whose submission to law is to be 'legitimate' must actually take part in sovereign legislative assemblies. It is very rarely that he uses language which implies the possibility of a sovereign power otherwise constituted. He does indeed 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 existing de facto, not de jure; but in no other connection (so far as I have observed) does he speak of anything short of the 'volonté générale' exercised through the vote of an assembled people as sovereign at all. And the whole drift of his doctrine is to show that no sovereign, otherwise constituted, had any claim on obedience. There was no state in Europe at his time in which his doctrine would not have justified rebellion, and even under existing representative systems the conditions are not fulfilled which according to him are necessary to give laws the claim on our obedience which arises from their being an expression of the general will. The only system under which these conditions could be fulfilled would be one of federated self-governing communes, small enough to allow each member an active share in the legislation of the commune. It is probably the influence of Rousseau that has made such a system the ideal of political enthusiasts in France.

[1] 'If it happened that the prince had a private will more active than that of the sovereign, and that he made use of the public force placed in his hands as the instrument of this private will, there would result, so to speak, two sovereignties, one de jure, the other de facto; but from that moment the social union would disappear, and the body politic would be dissolved.' (III, i.) 'When the prince ceases to administer the state according to the laws, and usurps the sovereign power … then the state in the larger sense is dissolved, and there is formed another within it, composed only of the members of the government … the social pact is broken … and all the ordinary citizens return as a matter of right to their state of natural liberty, and are merely forced, but not obliged, to obey.' (III, X.)

F. SOVEREIGNTY AND THE GENERAL WILL. Rousseau and Austin.

80. The questions then arise (1) whether there is any truth in Rousseau's conception of sovereignty as founded upon a 'volonté générale' in its application to actual sovereignty. Does anything like such a sovereignty exist in the societies properly called political? (2) Is there any truth in speaking of a sovereignty de jure founded upon the 'volonté générale? (3) If there is, are we to hold with Rousseau that this 'will' can only be exercised through the votes of a sovereign people?

81. (1) The first question is one which, if we take our notions of sovereignty from such writers as Austin, we shall be at first disposed decidedly to negative. Austin is considered a master of precise definition. We may begin, therefore, by looking to his definition of sovereignty and the terms connected with it. His general definition of law runs as follows: 'A law, in the most general and comprehensive acceptation in which the term, in its literal meaning, is employed, may be said to be a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.' [1] These rules are of two kinds: (1) laws set by God to men, or the law of nature; and (2) laws set by men to men, or human law. We are only concerned with the latter, the human laws. These are again distinguished into two classes, according as they are or are not established by political superiors. 'Of the laws or rules set by men to men, some are established by political superiors, sovereign and subject; by persons exercising supreme and subordinate government, in independent nations, or independent political societies' (pp. 88 and 89). 'The aggregate of the rules established by political superiors is frequently styled positive law, or law existing by position' (p. 89). This is distinguished from 'positive morality.' Laws are further explained as a species of commands. A command is a signification of desire, distinguished by the fact that the party to whom it is addressed is liable to evil from the party expressing the desire in case he does not comply with it (p. 91). This liability to evil forms the sanction of the command. Where a command 'obliges generally to acts or forbearances of a class, it is a law' (p. 95). 'Every positive law, or every law simply and strictly so called, is set by a sovereign person or a sovereign body of persons to a member or members of the independent political society wherein that person or body is sovereign or supreme. Or (changing the expression) it is set by a monarch, or sovereign member, to a person or persons in a state of subjection to its author. Even though it sprung directly from another fountain or source, it is a positive law, or a law strictly so called, by the institution of that present sovereign in the character of political superior. Or (borrowing the language of Hobbes) the legislator is he, not by whose authority the law was first made, but by whose authority it continues to be a law' (pp. 225 and 226).

'The notions of sovereignty and independent political society may be expressed concisely thus. If a determinate human superior, not in a habit of obedience to a like superior, receive habitual obedience from the bulk of a given society, that determinate superior is sovereign in that society, and the society (including the superior) is a society political and independent' (p. 226).

'In order that a given society may form a society political and independent, the two distinguishing marks which I have mentioned above must unite. The generality of the given society must be in a habit of obedience to a determinate and common superior; whilst that determinate person, or determinate body of persons, must not be habitually obedient to a determinate person or body. It is the union of that positive with this negative mark which renders that certain superior sovereign or supreme, and which renders that given society (including that certain superior) a society political and independent' (p. 227).

[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 a determinate person or persons, and (b) it considers the essence of sovereignty to lie in the power, on the part of such determinate persons, to put compulsion without limit on subjects, to make them do exactly as it pleases. [1] The 'volonté générale,' on the other hand, it would seem, cannot be identified with the will of any determinate person or persons; it can, indeed, according to Rousseau, only be expressed by a vote of the whole body of subject citizens; but when you have got them together, there is no certainty that their vote does express it; and it does not—at any rate necessarily—command any power of compulsion, much less unlimited power. Rousseau expressly contemplates the possibility of the executive power conflicting with and overbearing the general will. Indeed, according to his view, it was the ordinary state of things; and though this view may be exaggerated, no one could maintain that the 'general will,' in any intelligible sense of the words, had always unlimited force at its command.

[1] Cf. Maine's statement of Austin's doctrine in The Early History of Institutions, pp. 349 and 350: 'There is in every independent political community—that is, in every political community not in the habit of obedience to a superior above itself—some single person or some combination of persons which has the power of compelling the other members of the community to do exactly as it pleases. This single person or group—this individual or this collegiate sovereign (to employ Austin's phrase) may be found in every independent political community as certainly as the centre of gravity in a mass of matter. If the community be violently or voluntarily divided into a number of separate fragments, then, as soon as each fragment has settled down (perhaps after an interval of anarchy) into a state of equilibrium, the sovereign will exist, and with proper care will be discoverable in each of the now independent portions. The sovereignty over the North American colonies of Great Britain had its seat in one place before they became the United States, in another place afterwards; but in both cases there was a discoverable sovereign somewhere. This sovereign, this person or combination of persons, universally occurring in all independent political communities, has in all such communities one characteristic, common to all the shapes sovereignty may take, the possession of irresistible force, not necessarily exerted, but capable of being exerted. According to the terminology preferred by Austin, the sovereign, if a single person, is or should be called a monarch; if a small group, the name is an oligarchy; if a group of considerable dimensions, an aristocracy; if very large and numerous, a democracy. Limited monarchy, a phrase perhaps more fashionable in Austin's day than it is now, is abhorred by Austin, and the government of Great Britain he classes with aristocracies. That which all the forms of sovereignty have in common is the power (the power but not necessarily the will) to put compulsion without limit on subjects or fellow-subjects.'

84. The two views thus seem mutually exclusive, but perhaps it may be by taking each as complementary to the other that we shall gain the truest view of sovereignty as it actually exists. In those states of society in which obedience is habitually rendered by the bulk of society to some determinate superior, single or corporate, who, in turn, is independent of any other superior, the obedience is so rendered because this determinate superior is regarded as expressing or embodying what may properly be called the general will, and is virtually conditional upon the fact that the superior is so regarded. It is by no means an unlimited power of compulsion that the superior exercises, but one dependent in the long run, or dependent for the purpose of insuring an habitual obedience, upon conformity to certain convictions on the part of the subjects as to what is for their general interest. As Maine says (Early History of Institutions, p. 359), 'the vast mass of influences, which we may call for shortness moral, perpetually shapes, limits, or forbids the actual direction of the forces of society by its sovereign.' Thus, quite apart from any belief in the right of revolution, from the view that the people in any state are entitled to an ultimate sovereignty, or are sovereign de jure, and may withdraw either legislative or executive power from the hands in which it has been placed in the event of its being misused, it may fairly be held that the ostensible sovereign—the determinate person or persons to whom we can point and say that with him or them lies the ultimate power of exacting habitual obedience from the people—is only able to exercise this power in virtue of an assent on the part of the people, nor is this assent reducible to the fear of the sovereign felt by each individual. It is rather a common desire for certain ends—specially the 'pax vitaeque securitas'—to which the observance of law or established usage contributes, and in most cases implies no conscious reference on the part of those whom it influences to any supreme coercive power at all. Thus when it has been ascertained in regard to any people that there is some determinate person or persons to whom, in the last resort, they pay habitual obedience, we may call this person or persons sovereign if we please, but we must not ascribe to him or them the real power which governs the actions and forbearances of the people, even those actions and forbearances (only a very small part) which are prescribed by the sovereign. This power is a much more complex and less determinate, or less easily determinable, thing; but a sense of possessing common interests, a desire for common objects on the part of the people, is always the condition of its existence. Let this sense or desire—which may properly be called general will—cease to operate, or let it come into general conflict with the sovereign's commands, and the habitual obedience will cease also.

85. If, then, those who adopt the Austinian definition of a sovereign mean no more than that in a thoroughly developed state there must be some determinate person or persons, with whom, in the last resort, lies the recognised power of imposing laws and enforcing their observance, over whom no legal control can be exercised, and that even in the most thorough democracy, where laws are passed in the assembly of the whole people, it is still with determinate persons, viz. a majority of those who meet in the assembly, that this power resides, they are doubtless right. So far they only need to be reminded that the thoroughly developed state, as characterised by the existence of such definite sovereignty, is even among civilised people but imperfectly established. It is perfectly established (1) where customary or 'common' or 'judge-made' law, which does not proceed from any determinate person or persons, is either superseded by express enactments that do proceed from such person or persons, or (as in England) is so frequently trenched upon by statute law that it may fairly be said only to survive upon sufferance, or to be itself virtually enacted by the sovereign legislature; and (2) where no question of right can be raised between local legislatures or authorities and the legislature claiming to be supreme, as in America before the war of secession, and as might perhaps be found to be the case in Germany now, if on certain educational and ecclesiastical matters the imperial legislature came to be at issue with the local legislatures. But though the organisation of the state, even in civilised and independent nations, is not everywhere complete, it no doubt involves the residence with determinate persons, or a body or bodies, of supreme i.e. legally uncontrolled power to make and enforce laws. The term 'sovereign' having acquired this definite meaning, Rousseau was misleading his readers when he ascribed sovereignty to the general will. He could only be understood as meaning, and in fact understood himself to mean, that there was no legitimate sovereign except in the most thorough democracy, as just described.

86. But the Austinians, having found their sovereign, are apt to regard it as a much more important institution than—if it is to be identified with a determinate person or persons—it really is; they are apt to suppose that the sovereign, with the coercive power (i.e. the power of operating on the fears of the subjects) which it exercises, is the real determinant of the habitual obedience of the people, at any rate of their habitual obedience in respect of those acts and forbearances which are prescribed by law. But, as we have seen, this is not the case. It then needs to be pointed out that if the sovereign power is to be understood in this fuller, less abstract sense, if we mean by it the real determinant of the habitual obedience of the people, we must look for its sources much more widely and deeply than the 'analytical jurists' do; that it can no longer be said to reside in a determinate person or persons, but in that impalpable congeries of the hopes and fears of a people, bound together by common interests and sympathy, which we call the general will.

87. It may be objected that this view of the general will, as that on which habitual obedience to the sovereign really depends, is at best only applicable to 'self-governing' communities, not to those under a despotic sovereign. The answer is that it is applicable in all forms of society where a sovereign in the sense above defined (as a determinate person or persons with whom in the last resort lies the recognised power of imposing laws and enforcing their observance) really exists, but that there are many where there cannot fairly be said to be any such sovereign at all; in other words, that in all organised communities the power which practically commands the habitual obedience of the people in respect of those acts and forbearances which are enjoined by law or authoritative custom, is one dependent on the general will of the community, but this power is often not sovereign in the sense in which the ruler of an independent state is sovereign. It may very well be that there is at the same time another power merely coercive, a power really operating on people simply through their fears, to which obedience is rendered, and which is not in turn representative of a general will; but where this is the case we shall find that such power is only in contact with the people, so to speak, at one or two points; that their actions and forbearances, as determined by law and custom, are in the main independent of it; that it cannot in any proper sense be said to be a sovereign power over them; at any rate, not in the sense in which we speak of King, Lords, and Commons as sovereign in England.

88. Maine has pointed out (Early History of Institutions, Lecture XIII.) that the great despotic empires of ancient times, excluding the Roman, of which more shall be said directly, and modern empires in the East were in the main tax-collecting institutions. They exercise coercive force over their subjects of the most violent kind for certain purposes at certain times, but they do not impose laws as distinct from 'particular and occasional commands' nor do they judicially administer or enforce a customary law. In a certain sense the subjects render them habitual obedience, i.e. they habitually submit when the agents of the empire descend on them for taxes and recruits, but in the general tenor of their lives their actions and forbearances are regulated by authorities with which the empire never interferes,—with which probably it could not interfere without destroying itself. These authorities can scarcely be said to reside in a determinate person or persons at all, but, so far as they do so, they reside mixedly in priests or exponents of customary religion, in heads of families acting within the family, and in some village-council acting beyond the limits of the family. Whether, in such a state of things, we are to consider that there is a sovereign power at all, and, if so, where it is to be considered to reside, are chiefly questions of words. If complete uncontrolledness by a stronger power is essential to sovereignty, the local authorities just spoken of are not sovereign. The conquering despot could descend on them and sweep them away, leaving anarchy in their place, and he does compel them to be put in exercise for a particular purpose, that of raising tribute or sometimes recruits. On the other hand, these authorities, which represent a general will of the communities, form the power which determines such actions and forbearances of the individual as do not proceed from natural inclination. The military ruler, indeed, is sovereign in the sense of possessing irresistible coercive power, but in fact this power is only exercised within narrow limits, and not at all in any legislative or judicial way. If exercised beyond these limits and in conflict with customary law, the result would be a general anarchy. The truest way of expressing the state of the case is to say that, taking the term 'sovereign' in the sense which we naturally associate with it, and in which it is used by modern European writers on sovereignty, there is under such conditions no sovereign, but that the practical regulation of life, except during intervals of military violence and anarchy, rests with authorities representing the general will, though these are to a certain extent interfered with by an alien force.