The Green Bag
518
son,” says Willoughby, “and represents the supremacy of its will. Sovereignty is thus independent of its particular powers."
In the larger political relations, Austin was almost completely in accord with
represents a very high type of positive
power. Austin's conception was not even true when applied to his own country. He seems to have regarded lightly the efiect of the violation of constitutional law. He seemed to see in the violation of constitutional law only displeasure and
present political scientists. For instance, he refused to class as positive law the rules that grow out of international rela
unpopularity.
tions.
effect that was to follow, he would have
Willoughby states that this is
“logically
and
If this were the only
scientifically correct.”
been correct, but the violation of many
He quotes Jellinek as also being in accord
constitutional provisions would always result in England in the exercise of the reserve power in the people. Austin's error was in a failure to recognize this fact. “All law is a limitation on sov ereignty." Constitutional rules are laws
with this view. It is contended that these rules "rest upon no other coercive
force than that of morality and public expediency.”
Maine, however, did not
accept this view. His supreme re spect for custom caused him to dis agree.
But he
represents about the
only leading exception to the consensus of opinion in accord with the view of Austin.
Austin's first clash with those who are emphasizing political sovereignty comes with reference to the power of constitutional law. Austin denied that
constitutional law limited the power of the state. He regarded constitutional provisions moral in nature rather than legal. Austin's greatest fault here was due to the fact that he generalized from
too small a number of types.
in the strictest sense; hence, they attract
our attention to the fact that there is a source of sovereignty deeper and outside of the exercising functions of govern ment. When we trace out the source of legal
relations more minutely, the divergence of Austin and other political scientists becomes greater. He seemed to think that, on final analysis, sovereignty could go no further back than the electorate. This was his concrete view of it. It has been seen in his definition that he thought sovereignty could always be located in
In fact,
some definite person or body of persons.
his conclusion was based almost entirely upon the English government. As Wil loughby points out: “Constitutional pro visions do not purport to control the state, but the government.” Austin did
The whole line of argument in refuting
not grasp this distinction. The constitu tion does voice the supreme will of the state regardless of its source. The fact that the constitution has the power to bestow rights or to take them away is evidence that it represents more than moral power.
In most constitutions,
this theory is based on the fact that no monarch, no matter how absolute, ever possessed all the power by which his subjects were governed. Austin, in fact, practically acknowledged this fact in asserting that the ruler was largely
controlled by the wishes of the com munity when be respected the constitu tion. Evidently, Austin is wrong in merely locating sovereignty in an electorate.
there are reserved powers, such as the
As some one has pointed out, the elec
power to amend, which may be seldom,
torate is only a small proportion of the
if ever, exercised, but nevertheless it
mass of the people who compose the
