The Source of Sovereignty; R. K. Foley, Jr.

It provides the jurisprudential un derpinning to the thrust of political power. It seems to war with the es sential nature of justice, respect for free human choice. As such, it mer its investigation and analysis in an attempt to define the source sup porting the principle and to discover whether or not sovereignty and jus tice can reside in harmony. Measured historically, the analy sis of sovereignty experienced a rel· atively recent birth, although one can surmise that the existence and prac·· tical application of the tenet far an.. Mr. Foley, a partner in Schwabe, Williamson, Wyatt, Moore & Roberts, practices law in Portland, Oregon. tedated its recognition and analysis. Most commenltators have considered definitions aJ;1d location of sover eignty, with l~ttle attention devoted to the crucial" inquiry of the source of sovereignty. This essay peruses this critical qu.estion. As a work~ng definition, sover eignty is the, ultimate justification for the applic~tion of coercive force by the organized state to individuals residing withln the territorial pe rimeters of tihat organization or linked to it by means of birth, alle giance, contract or custom. Thus, one cannot comprehend sovereignty without attention to two interre lated concepts of state and citizen ship. The state is that unit which exercises sov~reignty: the applica tion of justified coercion within a given territor~. Citizenship refers to the relation of person to state: the lh7 168 THE FREEMAN March 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 Chaosand OrderedSlavery In pre-Reformation times, no one truly analyzed sovereignty. It ex isted. Tribes, city-states, and incipi ent 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 philoso phers discoursed upon the reason or justification supporting the chiefs decision to punish or ostracize a cit izen for real or imagined crimes, derelictions of duty or just plain dif ferences of opinion. While nomadic hordes displayed little or no sense of property or ter ritory, 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 ad vent of manorial domains and like territorial units, units which even tually merged, often through bloody internecine warfare, into the mod ern nation-states. In other words, states pre-existed the articulated concept of sovereignty. Early, well developed civilizations offered inci sive and detailed doctrines of citi zenship without a clearly defined discussion of the attributes and problems of sovereignty.

While the multitalented four teenth-century physician, Marsilio of Padua, groped toward the modern notion of sovereignty in his The De fender 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 Iived 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 de signed to curb the excesses of plun derers and pirates so rampant in Reformation times. Yet those who desire imposition of such control of ten fail to perceive, or to deal effec tively with, the equally troublesome problem of a marauding govern ment committed to subordinating its people in the good name of order. In deed, the conflicting forces of civiI chaos and ordered slavery mark the development of the doctrine of sov ereignty.

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, re gardless of the changing forms, pol icies and personnel of the govern ment. Neither thinker, however, 1982 THE SOURCE OF SOVEREIGNTY 169 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 sov ereignty 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 mod ern 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 harmo nize with the concept of justice as respect for free choice, and what limits ought to be placed upon the sovereign vis-a-vis citizens?

The tradition promulgated by the studies of the last four centuries has at least isolated six elements nor mally 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 circum scribed territory; (4) the absence of any competing and recognized coun tervailing political power; (5) the compulsory allegiance of the inhab itants to the state; and, (6) a legal equality, among the community of states, to carryon and judge its own internal affairs. Again, these defin itive elements merely describe sov ereignty; they do not purport to ex plain its source. II. POSSIBILITIES While many philosophers have expended considerable effort in the process of defhbng and locating sov ereignty, relatively few have rigor ously attacked! the seminal problem of the source or sovereignty and the reasons justifYJng imposition of lim its upon non~ggressive man. A working defini~ion sufficiently iden tifies the subject. The location of sovereignty poses an interesting but moot problem unless one assesses the utility of theiconcept altogether.

Several possible sources of the doc trine 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 re sided in a State and a Society be cause Divine Providence expected and directed such a venture. Reflection advises that no Super natural Being ordained any specific form of government nor did He ap prove the appilication of force to peaceable hum~n beings. One can not conceive of, an Ultimate Loving God imposing, a system upon His creation which leads only to oppres sion, injustice and bloodshed. Nonetheless, I, a grain of truth re sides in the postulate. Christians ac170 THE FREEMAN March cept the existence ofa.Natural Law, immutable and inexorable, govern ing the universe. Man possesses the capability of ignoring that Natural Law but, if he does so, he must pay the price sanctioned for disobedi ence. One fundamental rule of Nat ural Law-the second axiom of hu man action-is that man makes mistakes. If sovereignty derived from God implies that finite man can best govern his errant self in a struc tured state which reduces human friction and lessens or thwarts indi vidual 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 ac tion? 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 re sulted from some sort of formal or informal 'contract or agreement be tween citizens for their mutual ad vancement 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 psuedo-ro mantic vision developed by Rousseau ought to be .quelled once and for all time, since it leads to the om nipotent state. Perhaps at some time lost in the dim past, a group of men in a given territory met and banded together for economicbetterment and personal protection, although one encounters grave difficulties in en visioning 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 dis senters (whither sovereignty).

The most devastating attacks upon the theory supporting a "social compact" emanate from the nine teenth-century anarchists, Lysan der Spooner l and Herbert Spencer 2 • Spooner cogently argued that as senting parties to a constitution or law cannot logically bind unborn fu ture generations even if one could stretch a point to urge that the as senting majority bound all persons residing in the same territory. (Since the franchise exists sparsely today, and even more scantily in antedilu vian times witnessing the develop ment of most constitutions, and since lSee Spooner, Lysander, No Treason: The Constitution ofNo Authority No.6 (Ralph Myles Publishers, Inc., Colorado Springs, Colorado, 1973). 2Spencer, Herbert, The Right to Ignore the State, (Cayman Press 1973).

1982 THE SOURCE OF SOVEREIGNTY 171 many of the enfranchised failed to exercise their right to accept or re·· ject the basic norm by voting for rea·· sons of dissatisfaction with the ap·· paratus or the alternatives, one cannot validly conjecture that rna·· jorities adopt constitutions. What is the source that binds the nonparti·· cipants 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 com pact 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 oc cupy 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 par take of its social, economic and po litical system by use and active par ticipation. One could cogently argue that such persons have entered into a social compact, sub silentio, and ought to be bound by it. Such anal ysis does not deal adequately with nonaggressive dissenters in the ter ritory 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-ev-ery bit of land must have a government. Recorded his tory reveals periods of time when civilizations ¢xisted in migratory fashion and no ownership of real property by tbje "state" was deemed important. Certain North American Indian tribes developed a relatively high degree qf culture and social structure sans' any tenet of absolute ownership of the territory on which they resided. European gypsies be tray identical tnores, as do some Af rican tribes. Hence, the argument of a natural pro~ess proves too much and cannot stand alone as the ulti mate justification for sovereignty. There is sonllething to be said for a more though~ful articulation of this proposition. Sovereignty refers to a concatenation 'of individuals, terri tory and poweri Within a given space occupied by human beings, destruc tive forces ana insoluble disputes arise. A natural process may recog nize the ... need for some accepted means of preventing the application of force to nonaggressive persons and finally ajudica~ing disputes between clashing inhabi~ts. After all, Great Britain and the United States both professed sovereignty over the Ore gon Territory i in the early nine teenth centuryi' but no official gov ernment existe~ until the Champoeg incident, provoked when the wealth iest man in the territory, Ewing Young, had the audacity to die with property, without a will, and sans 172 THE FREEMAN March heirs. Whether logically necessary or not, the inhabitants of the Oregon Territory believed that such an event required the formation of a govern ment unit to probate the estate and settle, once and for all, in an orderly fashion, who should receive Mr.

Young's property. (0) 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. Sov ereignty represents an attribute of the state; is it not unreasonable to insist that that which is being de scribed also supplies the source of the attribute? To view the state as the fountain of its own power is to indulge in some sort ofHegelian view of an artificial entity as an organic being. Nevertheless, even here one can discern kernels ofwheat among acres of chaff. The state exudes power or force. Continued existence of the state and impelled allegiance of cit izens 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 non recognition, to actual deprivation of personal property and unmitigated violence. Thus, in a very real sense, fear of power may supply some jus tification for the existence ofthe state and, hence, for the attribute of sov ereignty.

III. HYPOTHESIS 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 ex tracts 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 capabil ity of making a better choice for any other individual than the actor him self; (3) Justice and morality require respect for individual free choice3 ; (4) Man is finite and fallible; one side of his nature is aggressive and violent, and that aggression and vi olence 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 im posing restraint upon their volun tary conduct and by substituting the 3See Foley, Ridgway K., Jr., "In Quest of Justice," 24 Freeman (No.5) 301, 302 (May 1974).

1982 THE SOURCE OF SOVEREIGNTY 173 subjective values of one group or in·· dividual 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 ex cesses and to permit untrammeled creative choice. These propositions compel some explanation. Man cannot be truly free if his range of alternatives re ceives limitation from his fellowman, 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 volunta rily, the state makes maximum freedom possible and provides the necessary condition for justice. Pro vision for these conditions consti tutes the only acceptable moral jus tification 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 cogniz~nce of this shadowy side of his own being and his tacit or explicit agreement to band together with others tolprovide a mutual de fense against ajggressionby force and deceit. Necessity impels this result in the sense tn.at man alone cannot fend off a hord¢ of aggressors colored by the dark side of human action. ProperLimits~o Sovereignty Consideration of the rationale and the source of sovereignty stimulates an expedition iinto the topic of the proper limits to sovereignty. Lack ing logical an~ysis and troubled by a dangerous world, Bodin and his intellectual progeny imposed cum bersome and in~xplicable limits upon the concept. Why, for example, ren der the succe$sion to the French crown immutable? Or, how do we define and discbver the laws of God which cannot b~ ravaged by the sov ereign? What destroys the essence of sovereignty as punishment for these heinous crimes] when, by definition, the sovereign ppssesses no equals or inferiors? Totalltarian nations have all perpetrated \crimes against indi viduals and states of unparalleled bestiality and v.ciousness in the past 50 years, yet no one realistically would deny them their role as sov ereign nations.

Nevertheless, sovereignty re quires distinct limits else we come face to face with the Hobbesian ab174 THE FREEMAN March solute monarch or Rousseau's tyran nical general will. Allow me to sug gest the perimeters of sovereignty: a sovereign nation enjoys the legiti mate 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 ofjustice. Within these narrow confines, the state reigns supreme; beyond these barri ers, the state possesses no moral au thority for the justifiable application of force. Acceptance of this definition im perils many subservient concepts of territory, of citizenship, of alle giance. No longer need the state own all property within a given border save that small portion carved out by pri vate 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 citi zenship. 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 terri tory in the absence of two instances: (1) commission of a crime or initia tion of fraud, or (2) involvement in a dispute with another person or per sons which the parties cannot re solve by private means. JusticeInvolvesa 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 aggres sor. Like the litigant in a dispute, he may conclude his difficulties by private means. The victim of a theft may search out his oppressor, con front him, and induce restitution.

While seldom accomplished in vio lent crimes, the opportunity re mains. The preservation of justice in volves a cost, like every other choice 1982 THE SOURCE OF SOVEREIGNTY 175 or activity in this world. Inhabitants., ora 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 dom iciliaries 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-Iast resort aspect. User payments may be Laws Follow Rights fairer althOl:(gh indirect ben eficiaries will riot share the cost and the user system poses fiscal and ad ministrative p~oblems. In sum, one: need encounter sov ereignty only if he voluntarily transgresses upon the right of an other to exercise his free choice and either is unab~e or unwilling to ne gotiate and compromise the matter voluntarily. In !those instances, state must remain ready and able to pre vent civil chao~ by the application of collective force. @ IDEAS ON LIBERTY How do you determine a right action by gov¢rnment from a wrong action by government? Can you, without using ~he concept of majority vote, write out an answer that satisfies you? Ifypu can, I will apologize.

And I will happily include you among the increasing number of Ameri cans who are seeking a basis for collective governmental action that is more permanent and fundarn.ental than the passing whims and passions of imperfect people-whims and passions that ate too often inflamed by demagogues who are themselves less perfect than the people they wish to lead. Personally, I am convinced that the solution is to be found in the original American concept that all rights begin 'iand end with individu als; that every person has an inherent right ~o his life, liberty, and property; that he may exercise his rights fully, \so long as he does not violate the equal rights of others; that we may ~elegate the defense of these rights to our government; that any action!!that is illegitimate for persons is automatically illegitimate for governm~nt; and that we should never regard government as any more sacred iithan any other useful organization that provides us with specialized se*vices we want at prices we are willing to pay.

P. DEAN RUSSELL, "Sources ofGovernmental Authority"