¹ Since the appearance of Mr.Barker's, much-discussed article on “The Discredited State” (Political Quarterly, Feb. 1915)Google Scholar much water has flowed under the bridge, and it has borne Mr. Barker's ideas along with it. Even in that article he made specific reservations as to the nature of the state's “discredit” which robbed it of any such significance as Mr. Laski has attached to it. Mr. Barker's position in modern political theory is important enough to make it worth while to determine what his real attitude is, if one may judge by his later pronouncements. To that end it may be sufficient to cite from his brilliant little study, Political Thought in England from Herbert Spencer to To-Day, pp. 177–183, and 248–251.

Mr. Laski has so often made grateful acknowledgment of his debt to Mr. Barker and to Dr. Figgis that he has very nearly succeeded in crediting to their account some implications of their ideas which are entirely due to him.

² After due acknowledgment is made for the debt we owe to Mr. Laski's erudition, as shown particularly in the essays reprinted from the Harvard Law Review, “The Early History of the Corporation in England,” and “Corporate Personality,” his latest book, The Foundations of Sovereignty, seems hardly to justify its title by its contents. I can hardly think this collection of essays can be meant to take the place of the work on pluralistic political theory promised in “The Problem of Sovereignty.” If it is so intended, one is certainly justified in pushing what is implied and suggested by Mr. Laski far enough to touch problems he has not himself dealt with. It is worth noting that he puts a rather more “economic interpretation” on political history than his sophisticated little study of Karl Marx would imply.

³ M. Duguit has based his system of droit objectif throughout upon the positivistic sociology expounded in M. Durkheim's La division du travail social. For an apt discussion of this foundation see the “Editorial Preface” of Mr. Arthur Spencer to M. Duguit's contribution to Volume VII of the Modern Legal Philosophy Series.

⁴ Op. cit., p. 18.

⁵ Cf. Traité de droit constitutionnel, Introduction, Vol. I, and the writer's “The Metaphysics of M. Duguit's Pragmatic Conception of the Law,” Political Science Quarterly, Dec. 1922.

⁶ The Problem of Sovereignty, p. 270.

⁷ Ibid., p. 12–13.

Mr. Laski cites as an instance Cardinal Wiseman's resistance to Gladstone in the controversy over the papal decrees of 1870. But the reality of power had so largely gone out of the hands of Rome that the cardinal's challenge could only assume political importance if it were rebuked by force, and thus put in the light of martyrdom for religion's sake. Had the medieval power of the papacy been behind the bull which claimed primary allegiance for the church in all matters, temporal and spiritual, Gladstone's action would have been necessary. Witness the long struggle of Church and State out of which emerged the sovereignty of the national state. Mr. Laski's hint that the unions, too, can take matters into their own hands wherever there is a question of allegiance as between the state and themselves is meeting its pragmatic test in the present period of reconstruction. Perhaps it is not too much to suggest that the issue is being settled historically by the same rude persuasion Henry VIII employed against the claims of the papacy. Unions and corporations of all sorts may find freedom for their own ends within the state when, like the church, they cease to attempt political ends by nonpolitical means.

In any case, to argue that “the power Parliament exerts is situate in it not by law but by consent” is to miss the all-essential point Professor Krabbe has clinched, i.e., that the “unity of legal rule,” which is the form of law, is more important than particular content. It is this unity of legal rule which is made possible by Parliament as a sovereign legislature that commands consent, ultimately, and which is supported by a community “sense of right” as ProfessorKrabbe, calls it (vid: The Modern Idea of the State, pp. 69–78).Google Scholar Man is sufficiently a political animal to be not so ready as Mr. Laski thinks he ought to be, to trust to “a ceaseless striving of progressive expansion,” where the game is played without an umpire. And constitutions, to carry out the figure, are “The rules of the game.”

⁸ Ibid. p. 270.

⁹ Esmein has said of this attempt to break down the bounds between law and positive morality, “Law as it is conceived by my esteemed colleague (M. Duguit) is nothing more than custom registered by the legislative will of the rulers; and yet he wants that to be law none the less. Isn't there in all this a confusion between what Montesquieu would perhaps have called the nature and the principle of legislative power?”

“That which causes the legislative power to act and that which leads it to legislate are indeed the given needs and the mean ideas of the population, and it is certain that the best laws are those which are made in advance by public opinion, mature and self-conscious. But that is no reason to mix up needlessly the categories of public law, and to confound the opinion which inspires the law with the authority which declares it. Let the proposal be made to return to the pure system of customary law: that would be clearer.” (Introduction, Eléments de droit constitutionnel, VI^ème ed.)

¹⁰ Commentaries I, 48.

¹¹ Authority in the Modern State, pp. 40–41.

¹² The men in England who have won the Labor party its present power have no doubt about the permanence of the state and the necessity of its sovereign authority as the source of recognized law. See Ramsay MacDonald's pronouncements on Syndicalism, and Sydney Webb's Proposed Constitution for the Socialist Commonwealth of Great Britain.

¹³ Problem of Sovereignty, p. 23.

¹⁴ It was one of Sidgwick's most emphasized contributions to political theory, and after him Mr. A. D. Lindsay's, to insist that the state exists to take moral. account of the blindness of economic forces in their deterministic play. T. H. Green's great service to English political theory was to recall it to the tempered idealism of Aristotle, and Aristotle's famous reconstruction of politics about the doctrine of the good life. The state comes into existence in order that man may live, that Politics held. But it agreed with Plato that the state continued in existence in order that man might live well.

Mr. Laski professes to take a deal of comfort from the idea that Aristotle was really anticipating the modern pragmatiste in politics, interpreting that to mean an attitude of what he sometimes calls political realism. But Aristotle with his insistence on the superiority of the speculative over the practical reason (Politics, Book IV, Chapter 14, as well as Chapter 3, Book IV), and on the moral end of the state can hardly be claimed as a supporter for the view of politics, positive et réaliste, as M. Duguit has called it, which strips inquiry to the bare recital of facts.

¹⁵ Harvard Law Review, Vol. 29, “Problem of Sovereignty,” p. 426.

¹⁶ Willoughby and Rogers in An Introduction to the Problem of Government have recalled Gróte's phrase “constitutional morality” as descriptive of respect for law in a community really politically educated (p. 58, note). Grote, in speaking of the “Athenian Democracy in the time of Kleisthenes, emphasized the necessity for ‘a perfect confidence in the bosom of every citizen, amidst the bitterness of party contest, that the forms of the constitution will be no less sacred in the eyes of his opponents than in his own.’ Such constitutional morality he called ‘a natural sentiment’ as exists in the United States. Grote, , History of Greece, Vol. II, p. 86.Google Scholar

¹⁷ “Problem of Sovereignty,” loc. cit. supra, p. 425.

¹⁸ A somewhat extreme presentation of this aspect of politics has been made by the anonymous author of Behind the Mirrors (1922), which aims at giving a realistic picture of persons and forces in national politics. The writer makes a very subtle analysis of certain “peaks of reality” which are beginning to thrust themselves up out of chartless surface of the old party systems. He believes that these “interest-blocks” will largely dominate legislation, forming an opportunistic and somewhat feudal balance of power among themselves, which will gradually take the residuary significance out of the party system. The representation of economic interests, without necessarily commanding a legal sanction for their organization, will so undermine the old system of territorial representation as to make it meaningless.

The pronouncements of Mr. Gompers and the leaders of American labor seem to indicate that the Federation of Labor intends to push its political ends through this system of threats to the individual legislator or to the party at large. Perhaps that may explain why the United States Supreme Court has come into so much opprobium with the labor leaders. It is not so amenable to this method of persuasion as are politicians looking to elections.

¹⁹ See the magistral statement given to the relations between “Law and Political Theory” by SirVinogradoff, Paul, Outlines of Historical Jurisprudence, Introduction, Chapter IV., Vol. IGoogle Scholar, especially, the definition of the state.

²⁰ Many observers have commented on the syndicalistic origin of important elements of the Facisti in the earlier periods of the movement. See Paul Hazard, L'Italie Vivante, an expansion of his “Notes sur Italie nouvelle,” in the Revue de Deux Mondes; also Communisme et “Fascio” en Italie by Alazard, Jean, Paris, 1922 (ed. Bossard, )Google Scholar, and I Facismo e i Partiti politici, Collection R. Mondolpho, Bologna, 1923 (Cappelli, ), 4 vols.Google Scholar For its present relations to syndicalism see “Fasismo: Reform or Reaction,” by Murphy, James, Atlantic Monthly, Jan., 1924.Google Scholar

²¹ The Great Society constitutes Mr. Wallas' effort to put the extremes of antiintellectualism in their proper light, just as Human Nature in Politics had been an attempt at rebuking rationalistic idealism. See also Evans, Austin P., “Problem of Control in Medieval Industry,” Political Science Quarterly, Dec. 1921, p. 603CrossRefGoogle Scholar, for an estimate of the stifling influence of the gilds, shared to some degree by the canonists, upon industry and commerce. Contrast J. A. Penty's Guildsman's Interpretation of History, and G.D.H. Cole's attitude to medieval gilds, especially hie Introduction to Renard's Guilds in the Middle Ages, with the facts collected by Mr. Evans, and the warning of The Great Society against the dangers of narrow professionalism seem borne out. The discussion of “Occupational vs. Proportional Representation” of Mr.Douglas, P. H., American Journal of Sociology, Sept. 1923Google Scholar, is also of interest.

²² Problem of Sovereignty, pp. 13–14.

²³ Jurisprudence, Sections 248–254. His description of legal sovereignty is applicable only to parliamentary government under a flexible constitution. Cf. Bryce's, LordStudies in History and Jurisprudence, Vol. IGoogle Scholar, Ch. 3, “Flexible and Rigid Constitution.”

²⁴ Authority in the Modern State, p. 41. For a statement of the classic doctrine of the State-Person see Jellinek, , System der Subjektiven Öffentlichen Rechte (Ed. 1892) Pp. 12 ff.Google Scholar“Die Rechtliche Natur des Staates. For the doctrine of Auto-Limitation see Ibid., pp. 201 ff., and Hauriou, , Principes de droit administratif, 6 ^ème ed. (1906) pp. 393–395.Google Scholar Mr. Laski's criticism of the doctrine is founded on Duguit's often repeated attack: See Traité de droit constitutionnel, 2 ^ème ed., Vol I. Chapt. 1 et passim, p. 307. Law in the Modem State, p. 148, and Souverainété et Liberté, pp. 108–110.

²⁵ In a footnote to Law in the Modern State (p. 76) Mr. Laski admits, however, that “This [the state's submitting its acts to the rule of law] is virtually ^possible under the doctrine of auto-limitation of Jellinek.”

²⁶ Mr.Lindsay's, A. D. excellent summary of “The State in Recent Political Theory,” Political Quarterly, Feb. 1914Google Scholar, makes clear that the old division of society into state and individual can no longer serve as the basis for a modern theory which must take into account the reality of associational life of all sorts. But that is, as he points out, not tantamount to denying a special sphere to the State, or to treating it as primus inter pares. Political theory may discard what Dr. Figgis has set the fashion for calling “the Omnicompetent State,” “the sum of atomistic individuals”, and do full justice to “the inherent rights of associations” without concluding as Mr. Laski does that legal sovereignty is “a barren concept”, “without practical utility” (Problem of Sovereignty, p. 269).

²⁷ International Relations, an address to the First Institute of Politics.

²⁸ Quoted from James', Pluralistic Universem The Problem of Sovereignty, p. 10.Google Scholar

²⁹ Federalism which divides legal sovereignty by the terms of a constitution accepted by all the members of the body, politic so created, in practice has tended to increasing unity, as is the case in the United States, or to a sovereignty in fact and in law, more and more completely absorbed by the constituent states, as is the case with the British Empire. The federal government of the United States has tended to gather legislative power to itself (see for instance, Pierce, Federal Usurpation), whether through the interpretative powers which the Supreme Court exercises or through the more difficult method of nation-wide amendments to the constitution. De Tocqueville called our young republic “un gouvernement national incomplet” and pointed out the compromise in fact between two theories logically irreconcilable. Some critics go so far as to say that the Civil War and the exigencies of modern business have completed the nationalization of our law to such an extent that federalism mean little more than administrative decentralization when it is not merely the survival of outworn forms.

The evolution of the British Empire has been in the opposite direction, toward a federalism which in fact more and more approaches a confederation. See H. D. Hall's The British Commonwealth of Nations, and for the United States, The Limits of Federalism,” by Leacock, Stephen, The Proceedings of the American Political Science Association, p. 37, Vol. V, (1908).Google Scholar

³⁰ The Problem of Sovereignty, p. 10.

³¹ See his “The Law of Trade Unions”, Political Quarterly, May, 1914.

³² Traité de droit constitutionnel, 2 ^ème ed., p. IX, Vol. I. The occasion being the attempted general strike of May 1, 1920, engineered by the most radical elements of the French Confederation Générale de Travail.

³³ See “The United States Steel Corporation,” “An analysis of the social consequences of modern business policies, by Page, Kirby, Atlantic Monthly, May, 1922.Google Scholar

³⁴ No more striking proof of the changed attitude of government could be asked than the decisions of the Supreme Court of the United States, upholding the validity of the Railway Transportation Act of 1920 on the one hand, and, in the Coronado Coal Co. case on the other, holding “Capital” and “Labor” equally to account.