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The Theory of the State as a Sovereign Juristic Person*

Published online by Cambridge University Press:  02 September 2013

Kenneth C. Cole
Kenneth C. Cole
Affiliation:
University of Washington
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Extract

The casual student of Western political history encounters sovereignty in a number of guises. In the stage of absolute monarchy, it was a personal endowment of princes; in the stage of democracy, it seems to be a collective endowment of the “nation” or the “people.” In the latter period, moreover, a definition of law as the command of a sovereign becomes increasingly popular.

These various contexts for sovereignty will already have suggested the protean possibilities of the general conception, but the student will have had little difficulty in sensing its generally anti-constitutional influence. Even popular sovereignty, which sounds the least dangerous, has had to be offset by opposing institutions in accounting for the relatively high constitutional morality of the democratic system.

While, therefore, it is not surprising to find sovereignty again (and in a still different guise) when we examine the leading conceptions of American public law, one well may marvel to find it accorded a key position among them. For, strange to say, the sovereignty of the state is widely accepted as the cornerstone of a legal edifice which the lawyers themselves appear to have laid.

Type
Research Article
Information
American Political Science Review , Volume 42 , Issue 1 , February 1948 , pp. 16 - 31
Copyright
Copyright © American Political Science Association 1948

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References

† A corrupt spelling, but that used in current translations.

1 The writer here records his obligation to Dean Pound for a particularly stimulating lecture.

2 Schlesinger, Rudolph, Soviet Legal Theory (New York, 1945), pp. 32, 33Google Scholar, mentions the confusion in Soviet jurisprudence on this point.

3 Cf. Ward, Paul, Sovereignty (London, 1928), pp. 82–124.Google Scholar The author, however, goes on to discuss Duguit as a pluralist, which is a common error.

4 This is the point, if not the exact language, of Harold Laski in his introduction to Duguit, Leon, Law in the Modern State (New York, 1919), p. xxvii.Google Scholar

5 Cardozo, Benjamin makes this point very neatly in The Nature of the Judicial Process (New Haven, 1921), p. 126.Google Scholar See also Cohen, Felix, Ethical Systems and Legal Ideals (Camden, 1933), pp. 230–249Google Scholar, for a good technical appraisal.

6 The indebtedness of W. W. Willoughby to Laband and Jellinek is nowhere more clearly expressed than by Willoughby himself. But since the latter's application of the theory to American public law instances its most prominent “working,” what follows turns directly on The Fundamental Concepts of Public Law (New York, 1924).

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