Mr. Foley, a partner in Schwabe, Williamson, Wyatt, Moore & Roberts, practices law in Portland, Oregon.
The concept of sovereignty—the monopoly of coercive power wielded by the state—lies at the root of almost all statist dreams and schemes. It provides the jurisprudential underpinning to the thrust of political power. It seems to war with the essential nature of justice, respect for free human choice. As such, it merits investigation and analysis in an attempt to define the source supporting the principle and to discover whether or not sovereignty and justice can reside in harmony.
Measured historically, the analysis of sovereignty experienced a relatively recent birth, although one can surmise that the existence and practical application of the tenet far antedated its recognition and analysis. Most commentators have considered definitions and location of sovereignty, with little attention devoted to the crucial inquiry of the source of sovereignty. This essay peruses this critical question.
As a working definition, sovereignty is the ultimate justification for the application of coercive force by the organized state to individuals residing within the territorial perimeters of that organization or linked to it by means of birth, allegiance, contract or custom. Thus, one cannot comprehend sovereignty without attention to two interrelated concepts of state and citizenship. The state is that unit which exercises sovereignty: the application of justified coercion within a given territory. Citizenship refers to the relation of person to state: the recognized rights, powers, duties and privileges of an individual subject to the coercive monopoly controlling within the perimeter in which that individual resides or is found.
Conflicting Forces of Civil Chaos and Ordered Slavery
In pre-Reformation times, no one truly analyzed sovereignty. It existed. Tribes, city-states, and incipient nation-states applied coercive fetters to people (citizen and slave alike) subservient to the unit. Power often justified force without recourse to legal niceties; few if any philosophers discoursed upon the reason or justification supporting the chiefs decision to punish or ostracize a citizen for real or imagined crimes, derelictions of duty or just plain differences of opinion.
While nomadic hordes displayed little or no sense of property or territory, they did reflect customary control over those persons annexed to the tribe by birth or fealty. This concept gained territorial status in addition to other links with the advent of manorial domains and like territorial units, units which eventually merged, often through bloody internecine warfare, into the modern nation-states. In other words, states pre-existed the articulated concept of sovereignty. Early, well-developed civilizations offered incisive and detailed doctrines of citizenship without a clearly defined discussion of the attributes and problems of sovereignty.
While the multitalented fourteenth-century physician, Marsilio of Padua, groped toward the modern notion of sovereignty in his The Defender of Peace (1324), it remained for Jean Bodin in his The Six Books on the State, published in 1576, to undertake the first systematic and clear excursion into sovereignty. Bodin lived in a time of turmoil which caused him to hunger for peace, contentment and security. This drive undoubtedly fueled his desire for a strong government designed to curb the excesses of plunderers and pirates so rampant in Reformation times. Yet those who desire imposition of such control often fail to perceive, or to deal effectively with, the equally troublesome problem of a marauding government committed to subordinating its people in the good name of order. Indeed, the conflicting forces of civil chaos and ordered slavery mark the development of the doctrine of sovereignty.
Both Marsilio of Padua and Jean Bodin drew the critical distinction between “government” and the “state,” the execution of sovereign functions (limited) from sovereignty itself (perpetual); sovereignty exists for as long as the state exists, regardless of the changing forms, policies and personnel of the government. Neither thinker, however, delved deeply into the source of his subject.
Other political philosophers—Thomas Hobbes, John Locke, Jean Jacques Rousseau, G. W. F. Hegel, and John Austin, to name a few—wrestled with the idea of state sovereignty and citizenship, but their discussions tend to emphasize the obligatory nature of the state and the subject’s duties to it and attempt to locate the sovereign in the modern complex state. Few ask the truly decisive questions related to the source of sovereignty: what is the basis for the existence of the state, how does that coercive unit harmonize with the concept of justice as respect for free choice, and what limits ought to be placed upon the sovereign vis-à-vis citizens?
The tradition promulgated by the studies of the last four centuries has at least isolated six elements normally attributed to a sovereign state: (1) the justification for the collective use of force; (2) the existence of a state; (3) the boundaries of a circumscribed territory; (4) the absence of any competing and recognized countervailing political power; (5) the compulsory allegiance of the inhabitants to the state; and, (6) a legal equality, among the community of states, to carry on and judge its own internal affairs. Again, these definitive elements merely describe sovereignty; they do not purport to explain its source.
While many philosophers have expended considerable effort in the process of defining and locating sovereignty, relatively few have rigorously attacked the seminal problem of the source of sovereignty and the reasons justifying imposition of limits upon nonaggressive man. A working definition sufficiently identifies the subject. The location of sovereignty poses an interesting but moot problem unless one assesses the utility of the concept altogether. Several possible sources of the doctrine exist and merit consideration. Each of several theories possesses at least a glimmer of validity.
(A) Does Sovereignty Derive from God?
For the tradition represented by John Locke, sovereignty developed as a religious concomitant. Man resided in a State and a Society because Divine Providence expected and directed such a venture.
Reflection advises that no Supernatural Being ordained any specific form of government nor did He approve the application of force to peaceable human beings. One cannot conceive of an Ultimate Loving God imposing a system upon His creation which leads only to oppression, injustice and bloodshed.
Nonetheless, a grain of truth resides in the postulate. Christians accept the existence of a Natural Law, immutable and inexorable, governing the universe. Man possesses the capability of ignoring that Natural Law but, if he does so, he must pay the price sanctioned for disobedience. One fundamental rule of Natural Law—the second axiom of human action—is that man makes mistakes. If sovereignty derived from God implies that finite man can best govern his errant self in a structured state which reduces human friction and lessens or thwarts individual impulses toward destruction then, to that extent, the Lockean tradition may be judged correct. The questions remain, however: what of justice and what limits should be imposed upon free choice and action? To attribute specific forms and regulations willy-nilly to a Supreme Being amounts to dictation to a Deity.
(B) A Social Compact
The attitude that sovereignty resulted from some sort of formal or informal contract or agreement between citizens for their mutual advancement and protection crops up in varying guises from ancient to modern times. From Bodin and Hobbes this discipline extends in some form or other to the Kelsenite theory today; perhaps the fact that it contains a partial truth accounts for its tenacity, yet the pseudo-romantic vision developed by Rousseau ought to be quelled once and for all time, since it leads to the omnipotent state. Perhaps at some time lost in the dim past, a group of men in a given territory met and banded together for economic betterment and personal protection, although one encounters grave difficulties in envisioning a “social contract” in the formal sense where all inhabitants solemnly vote allegiance and then inscribe their names on a dusty parchment. Moreover, one cannot assume total assent to all terms of the bargain, leaving one wondering the source of authority to bind dissenters (whither sovereignty).
Spooner cogently argued that assenting parties to a constitution or law cannot logically bind unborn future generations even if one could stretch a point to urge that the assenting majority bound all persons residing in the same territory. (Since the franchise exists sparsely today, and even more scantily in antediluvian times witnessing the development of most constitutions, and since many of the enfranchised failed to exercise their right to accept or reject the basic norm by voting for reasons of dissatisfaction with the apparatus or the alternatives, one cannot validly conjecture that majorities adopt constitutions. What is the source that binds the nonparticipants to the result: sovereignty?)
Spencer powerfully demonstrated that a dissenter cannot be made a party to an agreement in spite of his choice (if justice and morality are founded upon the respect for free choice). Thus, while the social compact theory enjoys some practical value, it fails to withstand rigorous analysis and it fails to accord with known historical fact.
Again, however, bits of value occupy the social compact theory. Many persons pledge allegiance to a state by choice or by indifference: they live under the laws of the state and partake of its social, economic and political system by use and active participation. One could cogently argue that such persons have entered into a social compact, sub silentio, and ought to be bound by it. Such analysis does not deal adequately with non-aggressive dissenters in the territory who merely wish to be left alone to choose their own destiny.
(C) A Natural and Necessary Process
One could urge that territorial sovereignty represents a natural imperative—every bit of land must have a government. Recorded history reveals periods of time when civilizations existed in migratory fashion and no ownership of real property by the “state” was deemed important. Certain North American Indian tribes developed a relatively high degree of culture and social structure sans any tenet of absolute ownership of the territory on which they resided. European gypsies betray identical mores, as do some African tribes. Hence, the argument of a natural process proves too much and cannot stand alone as the ultimate justification for sovereignty.
There is something to be said for a more thoughtful articulation of this proposition. Sovereignty refers to a concatenation of individuals, territory and power. Within a given space occupied by human beings, destructive forces and insoluble disputes arise. A natural process may recognize the need for some accepted means of preventing the application of force to nonaggressive persons and finally adjudicating disputes between clashing inhabitants. After all, Great Britain and the United States both professed sovereignty over the Oregon Territory in the early nineteenth century, but no official government existed until the Champoeg incident, provoked when the wealth-lest man in the territory, Ewing Young, had the audacity to die with property, without a will, and sans heirs. Whether logically necessary or not, the inhabitants of the Oregon Territory believed that such an event required the formation of a government unit to probate the estate and settle, once and for all, in an orderly fashion, who should receive Mr. Young’s property.
(D) The State as the Source of Sovereignty
Perhaps the least likely source of sovereignty resides in the state per se, although several of the early thinkers point in this direction. Sovereignty represents an attribute of the state; is it not unreasonable to insist that that which is being described also supplies the source of the attribute? To view the state as the fountain of its own power is to indulge in some sort of Hegelian view of an artificial entity as an organic being.
Nevertheless, even here one can discern kernels of wheat among acres of chaff. The state exudes power or force. Continued existence of the state and impelled allegiance of citizens can be accounted for by the real or implied threats of coercion for noncompliance. Such coercion may take many forms, from ostracism, persuasion, refusal of favors or nonrecognition, to actual deprivation of personal property and unmitigated violence. Thus, in a very real sense, fear of power may supply some justification for the existence of the state and, hence, for the attribute of sovereignty.
I propose as a hypothesis that the source of sovereignty resides in a Rule of Necessity—a principle which seems to collide with justice but which, in fact, makes true justice possible. The Rule of Necessity extracts the value from the suggested sources of sovereignty discussed heretofore and blends them into a working theory.
Let us commence with certain known factors:
(1) Man acts and chooses between alternate courses of conduct based upon his subjective values;
(2) No man possesses the capability of making a better choice for any other individual than the actor himself;
(3) Justice and morality require respect for individual free choice;
(4) Man is finite and fallible; one side of his nature is aggressive and violent, and that aggression and violence may, on occasion, be directed against other beings who seek no conflict and do no harm;
(5) The state (or the government of the state) coerces free men by imposing restraint upon their voluntary conduct and by substituting the subjective values of one group or individual for those of another group or individual by means of force or threat of force.
Positing these givens, we become cognizant of two facts: (1) The state violates the principle of justice by restricting absolute freedom of choice; and (2) The state appears necessary to curb man’s sinister excesses and to permit untrammeled creative choice.
These propositions compel some explanation. Man cannot be truly free if his range of alternatives receives limitation from his fellow man, acting either as an outlaw or under color of law. Neither a slave nor a victim of crime is free to the extent that his choice is impaired. To the extent that the state restrains every individual within its boundaries from acting in a forcible and fraudulent manner and decides disputes which the parties cannot adjust voluntarily, the state makes maximum freedom possible and provides the necessary condition for justice. Provision for these conditions constitutes the only acceptable moral justification for the doctrine of sovereignty.
Thus perceived, a meld of the suggested sources of sovereignty (God, contract, natural process, state) seems to supply an apt answer to the inquiry: what is the true source of sovereignty? Sovereignty flows from man’s fallible nature, his intrinsic predilection to violence. It relates to man’s cognizance of this shadowy side of his own being and his tacit or explicit agreement to band together with others to provide a mutual defense against aggression by force and deceit. Necessity impels this result in the sense that man alone cannot fend off a horde of aggressors colored by the dark side of human action.
Proper Limits to Sovereignty
Consideration of the rationale and the source of sovereignty stimulates an expedition into the topic of the proper limits to sovereignty. Lacking logical analysis and troubled by a dangerous world, Bodin and his intellectual progeny imposed cumbersome and inexplicable limits upon the concept. Why, for example, render the succession to the French crown immutable? Or, how do we define and discover the laws of God which cannot be ravaged by the sovereign? What destroys the essence of sovereignty as punishment for these heinous crimes when, by definition, the sovereign possesses no equals or inferiors? Totalitarian nations have all perpetrated crimes against individuals and states of unparalleled bestiality and viciousness in the past 50 years, yet no one realistically would deny them their role as sovereign nations.
Nevertheless, sovereignty requires distinct limits else we come face to face with the Hobbesian absolute monarch or Rousseau’s tyrannical general will. Allow me to suggest the perimeters of sovereignty: a sovereign nation enjoys the legitimate power to protect individuals living within a given boundary from the initiation of force and fraud by groups or individuals residing within or without those boundaries and to compel settlement of irreconcilable individual disputes according to common principles of justice. Within these narrow confines, the state reigns supreme; beyond these barriers, the state possesses no moral authority for the justifiable application of force.
Acceptance of this definition imperils many subservient concepts of territory, of citizenship, of allegiance.
No longer need the state own all property within a given border save that small portion carved out by private citizens and held subject to the whim of the government. The state need own little or no property; all other land unclaimed by individuals may stay in a natural state until claimed and employed by acting, creating human beings. The concept of state dominion over realty repre sents a curious atavism to feudal days where the lord of the manor owned all the land worked by his serfs; it does not harmonize with modern libertarian thought.
No longer need the resident of a given territorial unit pledge allegiance to a plunderer-state nor carry out its onerous obligations of citizenship. Man must be free to move about the globe within a minimum of externally imposed restraint; he rightfully remains subject only to the cardinal principle of justice that he maintain respect for the free choice of others and not initiate force against them. Sovereignty need not affect the dweller in a given territory in the absence of two instances: (1) commission of a crime or initiation of fraud, or (2) involvement in a dispute with another person or persons which the parties cannot resolve by private means.
Justice Involves a Cost
One who lives peaceably and without conflict need never touch the law nor encounter the sovereignty of the state, although he will benefit from life in a setting protected against initiation of force. Even a victim of force or fraud need not call upon public authorities to remedy the situation so long as the victim does not initiate force against the aggressor. Like the litigant in a dispute, he may conclude his difficulties by private means. The victim of a theft may search out his oppressor, confront him, and induce restitution. While seldom accomplished in violent crimes, the opportunity remains.
The preservation of justice involves a cost, like every other choice or activity in this world. Inhabitants of a territory could defray this cost either by means of general taxation or prorated payment by those who use the system. General taxation justifies on the ground that all domiciliaries benefit from a peaceable community although it seems unfair to impose a burden on one who never directly employs the system. In a sense, however, all inhabitants do use the system since an apparatus of common justice benefits everyone by its deterrent effect and court-of-last-resort aspect. User payments may be fairer although indirect beneficiaries will not share the cost and the user system poses fiscal and administrative problems.
In sum, one need encounter sovereignty only if he voluntarily transgresses upon the right of another to exercise his free choice and either is unable or unwilling to negotiate and compromise the matter voluntarily. In those instances, state must remain ready and able to prevent civil chaos by the application of collective force.