See also Pollock and Maitland, History of English Law, I, 472. ↩
See Underlying Principles of Legislation. ↩
The teleological school of sociology is interesting just here. While it marked a long advance on older theories, the true place of selection of ends is today more clearly seen. We were told: “Men have wants, therefore they come together to seek means to satisfy those wants.” When do men “come together”? When were they ever separated? But it is not necessary to push this further. ↩
I have tried not to jump the track from legal right to ethical right but occasionally one can speak of them together, if it is understood that one is not thereby merging them. ↩
The old consent theory assumes that some make the laws and others obey them. In the true democracy we shall obey the laws we have ourselves made. To find the methods by which we can be approaching the true democracy is now our task; we can never rest satisfied with “consent.” ↩
Although I do not agree with the form individualism takes in his doctrine. ↩
Some of the pluralists are concerned, I recognize, with the fact rather than the right of sovereignty. ↩
The trouble with the pluralists is that their emphasis is not on the fact that the group creates its own personality, but on the fact that the state does not create it. When they change this emphasis, their thinking will be unchained, I believe, and leap ahead to the constructive work which we eagerly await and expect from them. ↩
It is also necessary to an understanding of the new international law. See chapter XXXV, “The World State.” ↩
No one has yet given us a satisfactory account of the history of the notion of sovereignty: just how and in what degree it has been affected by history, by philosophy, by jurisprudence, etc., and how all these have interacted. We have not only to disentangle many strands to trace each to its source, but we have, moreover, just not to disentangle them, but to understand the constant interweaving of all. To watch the interplay of legal theory and political philosophy from the Middle Ages down to the present day is one of the most interesting parts of our reading, but perhaps nowhere is it more fruitful than in the idea of sovereignty. We see the corporation long ignored and the idea of legal partnership influencing the development of the social contract theory, which in its turn reacted on legal theory. We find the juristic conception of group personality, clearly seen as early as Althusius (1557–1638), and revived and expanded by Gierke, influencing the whole German school of “group sociologists.” But today are not many of us agreed that however interesting such historical tracing, our present notion of sovereignty must rest on what we learn from group psychology? ↩
The French syndicalists avowedly do not want democracy because it “mixes the classes,” because, as they say, interests and aims mingle in one great mass in which all true significance is lost. ↩
This is the basis of Duguit’s international law—the place of a state in an international league is to be determined directly by services rendered. ↩
Quoted by Duguit. ↩
It must be remembered, however, that while in the Civil War we definitely gave up the compact theory held by us since the Mayflower compact, yet we did not adopt the organism theory. The federal state we have tried and are trying to work out in America is based on the principles of psychic unity described in chapter X. The giving up of the “consent” theory does not bring us necessarily to the organic theory of society. ↩
Duguit says that the United States confers the rights of a state on a territory. No, it recognizes that which already exists. ↩
“The word ‘and’ trails along after every sentence. Something always escapes. … The pluralistic world is thus more like a federal republic than like an empire or a kingdom.” A Pluralistic Universe, 321–322. ↩
When they say that the passion for unity is the urge for a dominant One, they think of the dominant One as outside. ↩
One of the pluralists says, “I cannot see that … sovereignty is the unique property of any one association.” No, not sovereignty over “others,” but sovereignty always belongs to any genuine group; as groups join to form another real group, the sovereignty of the more inclusive group is evolved—that is the only kind of state sovereignty which we can recognize as legitimate. (See chapter XXIX on “Political Pluralism and Sovereignty.”) ↩
See chapter XV. ↩
Mr. Laski is an exception to many writers on “consent.” When he speaks of consent he is referring only to the actual facts of today. Denying the sovereignty postulated by the lawyers (he says you can never find in a community any one will which is certain of obedience), he shows that as a matter of fact the state sovereignty we have now rests on consent. I do not wish to confuse the issue between facts of the present and hopes for the future, but I wish to make a distinction between the “sovereignty” of the present and the sovereignty which I hope we can grow. This distinction is implicit in Mr. Laski’s book, but it is lacking in much of the writing on the “consent of the governed.” ↩
Wherever you have the social contract theory
