SOURCE: "The Pragmatic Politics of Mr. H. J. Laski," in The American Political Science Review, Vol. XVIII, No. 2, May, 1924, pp. 251-75.

[In the following essay, Elliott evaluates theories of the state and government in Laski's early writings.]

In all the varied current of contemporary political theory which seems to have set against the conception of unitary sovereignty as the basis of the structure of the state, the work of Mr. H. J. Laski stands out sufficiently to command general attention. Perhaps this is as much because of the arresting fashion in which Mr. Laski has challenged the traditional doctrines of political theory as it is from the positive content of his own theories. He has seized upon the ideas centering about group rights which Drs. Figgis and Maitland have forced so brilliantly upon modern attention, and has made great play with them in developing Mr. Ernest Barker's idea of "The Discredited State."¹ Because of the radical implications of some of these theories as Mr. Laski has expounded them, political theorists have for some time been waiting for the promised exposition of Mr. Laski's ideas in more systematic form than has yet been offered by any of the historical and critical studies and the two brief introductory chapters of The Problem of Sovereignty and Authority in the Modern State, or even The Foundations of Sovereignty.² But as Mr. Laski is professedly a disciple of William James, it is perhaps too much to ask that he throw his ideas into any form that smacks of system and the rationalistic taint which pragmatists seem to attach to system. To the end of his days William James never entertained seriously the idea of giving his "way of looking at things" any more logical arrangement than the form of a series of rather popular lectures—with vast benefit, no doubt, to the "readableness" of his essays, but with equal difficulty to an unambiguous interpretation of what he meant by his suggestions. The similarly casual nature of such connection as has yet bound Mr. Laski's ideas to a single unity may excuse one, then, for finding some difficulty in selecting a method of presentation.

To begin with, it is obvious, if Mr. Laski is to be taken at his word, that he regards the Austinian conception of legally absolute sovereignty as nothing more than one of those pompous fictions in which the men of the robe delight, but in which there is no meaning for a political realism that would seek the substance behind the shadow. Austinian sovereignty is a concept of the most vicious unreality when applied to the pluralism of actual affairs. It partakes of that same absolutist temper that pragmatists hold is discredited by all modern thought, and it engenders the same fetich-worship Mr. Dewey excoriated so thoroughly in his war-time denunciation of German Philosophy and Politics. The day of the "Omnicompetent-State" myth is done, and to talk of its sovereign power is merely to fly in the face of facts.

These facts present themselves to Mr. Laski under two broad heads, closely related: first, every individual act of the state can be reduced simply to the act of those in power, and commands no especial moral sanction because it is the act of the state; second, as the acts of the state are to be tested in terms of the purpose they express or fulfill, they must of necessity compete for the loyalty of individuals with the purpose of other associations as real as the state. This, I take it, is tantamount to the assertion that the political framework under which law is made, interpreted, and administered, has no claim upon obedience qua political framework, for it must eventually face the existence of other corporate bodies with autonomous wills of their own, with ends often distinct from its ends, and a hold on the lives of their members more secure than its hold.

Of late, it is true, there has been a tendency in Mr. Laski's attack on sovereignty to fall back on the juristic conceptions of M. Duguit, and the limitations upon sovereign power implied in the conception of solidarité sociale, and its positivistic sociology, rather than to stress the idealistic and individualistic ethics that hold suspect the absolute state. In the Translator's Introduction which he has written for M. Duguit's Law in the Modern State he has, indeed, attempted to graft the notion of real corporate personality and the idea of group rights upon M. Duguit's theory, which will itself have none either of corporate persons or of rights of any sort whatsoever.

So from his earlier conception of the state as a purposeorganization, Mr. Laski's politics have moved consistently toward the more "solidariste " notion of an organic society which M. Durkheim has furnished to M. Duguit.³ This is not without its significance, when one remembers that the whole effort of M. Duguit is to substitute objective law for subjective right as the basis of a legal system. At the outset, Mr. Laski questions the sovereignty of the state in the name of the moral sanctions of rights. But his pragmatic conception of what is meant by rights leads him to define them in terms of functional relation to the social organism: "What I mean by 'right'," he puts it in The Problem of Sovereignty,⁴ "is something the pragmatist will understand. It is something the individual ought to concede because experience has proved it to be good." From this "ought," it is no very long step indeed to the "devoir" of M. Duguit, an obligation not moral but necessary, imposed by reactions of the social organism.⁵ It leads away from the starting point of individual responsibility to the group morality of the so-called science des moeurs. And that is just where Mr. Laski winds up. Though he has banished authority in the name of the individual so far as legal sovereignty is concerned, he reintroduces the subordination of the individual in the name of the group. Corporate persons are real moral persons, he holds with Maitland. It is in the name of these larger persons within the state that its right to command is challenged.

The conception of real corporate personality serves Mr. Laski for a binding material for the elements of romanticist individualism and positivistic functionalism. He uses it to bring about so much of synthesis as he conceives to be a necessity to society. The state is merely one group among other groups: "It is clear that the sovereignty of the State does not in reality differ from the power exercised by a church or a trade union. The obedience the church or trade union will secure depends simply on what measure of resistance the command inspires."⁶ If obedience is simply a matter of the degree of resistance a command inspires, then political organization has, indeed, no especial differentiating quality from other organization. In fact that is the sum of Mr. Laski's attack on the doctrine of sovereignty. Real sovereignty is to be found in society at large, "not in the coercive power possessed by its instrument, but in the fused good will for which it stands . . . The power Parliament exerts is situate in it not by law but by consent, and that consent is, as certain famous instances have shown, liable to suspension."⁷

Apparently it is his contention that, since the legal power of Parliament gets itself obeyed in historical instances only when it does not meet resistance strong enough to thwart it, the supreme sovereignty of the state, upon which law is based, is a concept devoid of reality. Pragmatiste can understand that, too. As he puts it: "Sovereignty is, in its exercise, an act of will, whether to do or to refrain from doing. It is an exercise of will behind which there is such power as to make the expectation of obedience reasonable. Now it does not seem valuable to urge that a certain group, the state, can theoretically secure obedience to all its acts, because we know that practically to be absurd."⁸ Pragmatically speaking, therefore, law is whatever rules of conduct can get themselves obeyed in a given society. On these grounds there is no use in speaking of positive law as distinguished by a difference in kind from positive morality, to use the Austinian terminology. The difference is rather one of degree, of the distinctness with which the sanctions of social reactions are formulated and applied. This position, let us note in passing, is also that of M. Duguit.⁹

Is there not, though, a real distinction in kind between political activity and other organized action under authority? If the state has a purpose of its own, as Mr. Laski admits at times, is it not precisely that of establishing the rule of law, the law it makes? And does not the permanence of the end it serves provide a sufficient necessity to guarantee that positive law must assume the proportions of a self-completing system, distinct from positive morality by virtue of the determinate character of the organs for its declaration and enforcement? These questions bring up the reality of the legal conception of sovereignty. Is there any validity in the theory that the state can command obedience to the law it proclaims, and can demand absolute recognition of its sovereignty? Mr. Laski thinks not; and yet how can any system of law exist which admits the legality of resistance to its rules? It may envisage the possibility of resistance to its decrees; indeed its provisions of legal sanctions are admissions of the fact that law is rarely absolute, because it does not get itself automatically obeyed.

But unless the law is to be treated as no more than the sum of social forces, there must exist within any society an area within which the interests at issue must be submitted to arbitrament. Legal sovereignty is very far from being merely idle theory. The supineness with which men accept despotism after a period of rulerless anarchy shows how fundamental a need it fulfills. A state in which this area is so unclearly delimited as to permit law to be made by "direct action," cases of which Mr. Laski cites for historical justification with considerable satisfaction, is simply a state in which legal sovereignty is in abeyance, in the strict use of the term, no state at all. If that be made an habitual condition of the body politic, respect for law is gone and a period of feudalistic strife among the interests ensues, with the cycle of degenerative force set up in full swing. As feudalism got nationalism, so lawlessness begets Facismo.

For law, then, it is a theoretical necessity to regard sovereignty as of that "supreme, irresistible, uncontrolled authority," the "jus summi imperii" of which Blackstone wrote.¹⁰ But Mr. Laski correctly questions whether or not this is so formidable a power as the mere words indicate. One must, as a matter of fact, examine the sources of this authority in which to find its limitations. Now if, as John Chipman Gray has told us, "the real rulers of a society are undiscoverable," it is still necessary to look for some responsible sovereign in order to give stability to juridical principles. Mr. Laski himself recognizes this as a technical necessity: "It implies only that for the courts the will of the sovereign body, the king in Parliament for example, is beyond discussion. Every judge must accept unquestioningly what fulfills the requirements of the forms of law. But, for the purposes of political philosophy, it is not so abstract and a priori a definition we require. What we desire to know is not what has the legal right to prevail, but what does in actual fact prevail and the reasons that explain its dominance. Here, it is clear enough, the legal theory of sovereignty is worthless. Once we are in the realm of actual life it is upon the limitations of sovereignty that attention must be concentrated. What then impresses us is the wide divergence between legal right and moral right . . ."¹¹

This is really the gist of Mr. Laski's case against the state as sovereign. It is a question of where attention must be concentrated. And as theories inevitably reflect to greater or less degree the historic setting of the time and the parti pris of their author, it is well to notice that the pragmatic purpose of Mr. Laski's declaration, "the theory of legal sovereignty is worthless," comes from a background of judicial decisions like that in the Osborne judgment and the Taff Vale case, reflected by Mr. Laski's Labor party self. The pragmatists, with their fertile emphasis on the necessity of considering the psychology as well as the logic of thinking, are always ready to show us the "reasons" for theories on other grounds than reason. It is air, then, to bear in mind Mr. Laski's very useful affiliation with the Labor party when we consider his claim that "in the realm of actual life it is upon the limitations of sovereignty that attention must be concentrated." One may wonder what the attitude of the Labor party in power will be toward the same sovereignty some of its intellectuals have so often assailed as unjust.¹²

But, bearing in mind that as often as not Mr. Laski's use of pluralistic theories advances the church and other institutions and associations in the state as stalking horses for the unions of the world of labor, one may do well to weigh the proposal that we must discard the theory of legal sovereignty from political theory, in order to grapple with the substances of which it is but a shadow. This is to deny any special justification for the realm of law, any presupposition in its favor, so to speak. Mr. Laski draws the conclusion from his theory of real corporate personality that the state is only one association among many, not different in kind and therefore not possessed of a special right to command. This sort of reasoning not only involves a non sequitur among its logical fallacies—although that is perhaps no objection to it from the point of view of pragmatists; it is also the formal denial not only of the possibility of systematically accepted and applied law, but of the entire realm of political organization under law. It is all very well to say: "Such is the natural consequence that the personality of associations is real and not conceded them by the state;" it by no means follows that these persons all share the political character of the state. Unless there be one group among the many capable of enforcing law, the only means by which the group rights can be maintained is by the appeal to force. While Mr. Laski claims for his doctrine that "like Dewey's philosophy" it is '"consistently experimentalist' in form and content," he says "it denies the Tightness of force." Yet in the same passage he says "It dissolves—what the facts themselves dissolve—the inherent claim of the state to obedience. It insists that the state like every other association shall prove itself by what it achieves. It sets group competing against group in a ceaseless striving of progressive expansion."¹³ And expects, apparently, that the "progressive expansion" that will come out of this pitting of "group against group in a ceaseless striving" will result from some law of nature. The state is to be made a combatant, and in order to show that one does not believe in "the rightness of force" (if it is the force of established law), it is to possess only the same force that the other strivers have. It is then to be measured for its success in terms of its achievement, which will necessarily be limited to its own survival, for it has by definition no superior power of regulation over the conduct of other groups.

It is curious that Mr. Laski can arrive at a conclusion which strips the majesty from law without seeing that he is rendering the very individuals helpless whom he set out to protect against the absolute sovereignty of the absorptive state. The authority he has taken from law he has given to the pseudo-individuals whom he calls corporate persons. It is true that the state is a corporation among other corporations, but its purpose is one which it alone can serve. A community in which there is a general unwillingness to accept the law arrived at by constitutional means, and in which the limits that are put upon corporate interests are those merely of survival in the general conflict, is a community not under law. That is what Mr. Laski's theories lead to in practice, with whatever pragmatic caution he refuse to push them to their logical conclusion as theories. And in such a community the individual grows less and less, the corporation grows more and more, until one, like the medieval church, tends to absorb all. Just as in the case among business corporations, the big fish swallow the little, until society becomes ill from this cannibalistic diet.

The sort of doctrine which denies the inevitable rightness of law is perfectly justifiable so long as that denial means that the individual conscience can not be coerced into ascribing moral goodness to acts of the state—or any other corporation,—simply because that corporation forms a community of interest and of purpose in which the individual reckons himself a member. But because the purpose that such a community, in particular the state, serves, is one larger than the individual act, a man may with good conscience obey laws which do not command his approval separate from their context in the larger purpose. It is this larger purpose that Mr. Laski, in effect, denies. So long as he maintains his denial on the ultimate moral responsibility of the individual, he is on safe grounds; for the way of the absolute state is what James said of the absolute's self: it is like the lion's den of Aesop's fables: nulla vestigia retorsum. But when he passes from that moral ultimacy of human personality to the same ultimacy in corporate personality he is destroying the former in seeking to establish the latter.

The state, for instance, does represent a real corporate life; but its only claim to it lies in its moral purpose, the community of the will to the good life among individuals. That is a will which can only be realized by intelligent moral coöperation to delimit the blind play of economic interests.¹⁴ Mr. Laski has claimed that the trade-union ideal of the workers "was a wider ideal than that which the state had attained," but in the light of trade-union practice this is a statement which can be challenged, particularly so long as the unions exist chiefly to further the economic interests of the members. The state has always existed to some degree as the communitas communitatum, and for that reason it can and does command the moral adhesion of individuals more widely than any particular association because it serves a moral purpose more universal than that of any other. Liberty, in whose name men have so passionately died, can not exist where there is not a law to protect the individual against the enslavement of force. The ideal of the legally sovereign state—let men's actions when that sovereignty is seriously challenged attest it—is an ideal both wider and more intensely cherished wherever races have attained to the political maturity of responsible government, than any other single ideal except that of the liberty which it is the duty of the state to protect. To treat the state as primus inter pares is simply to deny to it any functional significance of its own. That is just what Mr. Laski would do, however. Accepting Gierke's demonstration that the state does not create that reality which is the group person of other groups, "We then give to this particular group (the state) no peculiar merit. We refuse it the title of creator of all else. We make it justify itself by its consequences. We stimulate its activities by making it compete with the work of other groups coextensive with or complementary to itself. As it may not extinguish, so it may not claim preëminence. Like any other group, what it is and what it will be, it can be only by virtue of its achievement. So only can it hope to hand down undimmed the torch of its conscious life."¹⁵

Either there is the expectation of the return of the Golden Age at the back of Mr. Laski's theories, or he is not particularly concerned with whether or not the lamb-like state will ever rise from where it has attempted to lie down beside these corporate lions. For the propositions that the state may not extinguish, as well as that it may not claim preeminence, are equally incompatible with the rule of law. It cannot allow the groups within itself to be self-governing where the interests of the groups are pushed into the realm protected by the law. The rule of law can not exist side by side with, say, the Ku Klux Klan. The "torch of its conscious life" gutters or is trampled out if the state permits the common law of the land to be thrown into the arena of social strife, for that law is the very breath of its flame. Law represents a certain area of agreement for the settlement of disputes, for the protection of generally recognized rights and the enforcement of duties corresponding to them. Truly enough, as Mr. Laski has demonstrated in the historical studies he has undertaken of clerical and political authority, the law is never static in its formal completeness. But it is a pragmatic error to forget the utility of the formal and systematic character of law, and to insist that because the final sources of sovereignty are extra-legal, there is no place for the theory of legal sovereignty in political science. Social solidarity, to which Mr. Laski's appeal of late has been made to hold society together, is an ideal, not a fact. The state exists to help the realization of that ideal. It can only do so if it represents a will of sufficient permanence and stability to abide by law, that is to accept the sovereignty of the state as the necessary condition of a government in which men may have confidence. Really, after all, the community of purpose which the state represents is only possible upon the basis of reciprocal obligation, and a common willingness to accept the rules of the game. That implies a certain trust in human goodness, and a mutual willingness to put that confidence to the test by voluntarily "casting in one's lot" with a political society.

Mr. Laski sees the matter from a different point of view from that of trust, however. The loyalties of men are various indeed, as he says. At times the basis for political agreement is so slight, as compared with the violence of disagreement, that the real ground for political settlement is lacking. But it is worth noting that this is generally the outcome either of continuous oppression of a part of the community by another part through an abuse of power which revolts men's feeling for justice in law, or of perverting power to serve to establish law by force. Whether it be a numerical minority or majority that so acts, the balance generally is restored against it by the community of resistance that it meets from a society whose normal intercourse depends upon legal stability and constitutional procedure.¹⁶

The point which Mr. Laski is really raising is, Can there be in the present state of human relationships any sovereign state capable of such unity that its law will be willingly accepted by the associations within it, where its interests conflict with their own? And on a realistic basis, certainly, no view of a cross-section of any actual society would show the modern state completely absorptive of all the lesser associations, their purposes or the loyalties of their members. He has put it in this way: "But sovereign your state no longer is if the groups within itself are thus self-governing. Nor can we doubt this polyarchism. Everywhere we find the groups within the state which challenge its supremacy. They are, it may be, in relation with the state, a part of it, but one with it they are not. They refuse the reduction to unity. We find the state, in James' phrase, to be distributive and not collective. Men belong to it; but they belong to other groups, and a competition for allegiance is continually possible."¹⁷

Gladstone's attack on the Vatican decrees of 1870, Bismarck's Kulturkampf, the long struggle of France with "clericalisme, " and the failure of the state to exact a complete loyalty to itself—these are matters of history. Mr. Laski points to the successful resistance of unions, notably the English coal-miners' resistance to the demands of the state even during the war, as offering a parallel. He would, no doubt, echo the words of Mr. Gompers, the head of the American Federation of Labor, with real approval: "The law must not interfere with labor," spoken as they were of the injunction issued by Attorney-General Daugherty against the striking railway crafts unions in 1922. As a matter of fact, Mr. Laski has cited the Adamson Eight-Hour and Wages Act of 1916, "railroaded" through Congress by the express threat of a strike on all the railroads by the members of the "Four Brotherhoods," cited it, too, as an instance of the state's helplessness to enforce the so-called "general will" of law against the will of a really powerful "corporate person" within it. In the fact he is unhappily quite right. The growing power of great "bloes," possessed of both voting and economic power, over modern legislative assemblies, proves the fact to be that the state not only dare not act strongly against these interests, but that it is often bullied quite openly into placating them by special favors. The political observers in the American press, for example, are never tired of Jeremiacal lamentations on the passing of political power from the party leaders into the hands of ostensibly nonpolitical organizations: the Farmers' "bloc" through which Mr. Silver has been said to exert a much more real political power than its official spokesman, Senator Capper;¹⁸ to say nothing of the "Prohibition" forces and the "veterans" organizations, standing whip in hand over the harried legislators. In general, the opposition of one of these bodies is sufficient to "kill" almost any candidate or any bill; and only President Harding's veto prevented a display of positive strength in the form of a raid on the national treasury for a bonus of several billions of dollars to be dispensed to the "veterans" for "compensation."

These things are true. But does the distribution of panem ac circenses to lobbyist organizations, or the impotence of the state before the combined power of either what is called "Capital" or what is called "Labor" constitute a hopeful political trend? May one not suggest that it is the pragmatic attitude of the "economic man" in all the purity of utilitarian individualism, and even more, the same attitude in "corporate persons," which goes far toward furnishing a psychological basis for the growth of a political pluralism founded on interests and not upon the protection of moral responsibility? If German philosophy and politics took one extreme is not this the other? Nor does it add morality to the purely economic character of the struggle to do, as Mr. Laski has done, transfer the unit of plurality from the individual to the corporation. If anything is changed, it is in the direction of a more and more deterministic attitude, one of pure survivalism in such ethics as remain. May not a part, at least, of the growing willingness of groups to exploit the state to their interest, and the corresponding growth in their power to do so, be the result of the growth of an anti-state philosophy, or perhaps the lapse of a real philosophy of the state reflecting itself in the character of the actual sovereign—that intangible thing called public opinion? An escape from industrial feudalism can come only as the escape came from medieval feudalism—through the redevelopment of a sovereign.

We have insisted, correctly, that the actual government is the servant of the constitutionally defined state, not its master. But the servant of the law must be invested with its dignity, if the law is to be obeyed. It is not self-enforcing. Perhaps we could use fewer eulogists of the Constitution and more men of force and integrity in public affairs.

Still it is certain men have not come to feel that the state purpose is weaker in its hold on their loyalty without good reason being afforded by actual circumstances as well as by theory. For one thing, modern business claims greater talents and more time than business did. Recent scandals seem to argue that it claims too many of those entrusted with the offices of state. Much of Mr. Laski's attack on the sovereign state strikes a universally responsive chord in our moral being, too, for we feel that any such absolute sovereignty as is literally set down by Blackstone would be a denial of our individual freedom of choice. If the state in its governmental practice is bad, we will not call it just. We are, as he says, "whether we will or no" ... . "bundles of hyphens" in our loyalties. "Where the linkages conflict a choice must be made." The absolute sovereignty of the state remains a necessity to law and to judicial interpretation, but as the state is "the community organized for law,"¹⁹ and itself is a matter of degree, the state can only claim such power as the degree of community endows it with.

When all this is pressed home to its uttermost emphasis, however, it falls very far short still of "polyarchism." Where political issues, that is to say the sovereignty of the community of law, are vitally affected, the unity of the state-purpose is made clear. Mr. Laski thinks that, where this allegiance is in question "it is obvious that every great crisis must show its essential plurality." Surely this is not the judgment of modern history. The state-purpose varies in the intensity of its hold upon men's loyalty; but it needs no more than a knowledge of the facts of actual issues in the recent conflicts between, for instance, the general-strike idea and the idea of the rule of law to show where allegiance lies. Among the workers themselves, to a very large extent, the issue has been settled in favor of the state. Witness the Italian communists' fiasco of 1920, then Facismo.²⁰

The dangers inherent in the absorptive personality of the economic group, for instance, are equally as great as those involved in the doctrine of what has been called by Hobhouse The Metaphysical State. The error involved is as old as steering toward Charybdis in order to escape Scylla. In The Great Society Mr. Graham Wallas has pointed out very fittingly the pits into which the antiintellectualist advocates of group pluralism fall by failing to take note of the beams in their own eyes. The guild-spirit of the Middle Ages had much of the narrow spirit of "closed corporation" in it, as well as much that enlisted men's creative energies.²¹ Perhaps it is only by weighing things in terms of their respective contributions to the good life that the right relation of the state to other associations can be established. And no matter how final be the individuality of this judgment, it is certain that the province of law must be respected.

The Kantian background of Mr. Laski's ethical individualism should have prevented him from taking the pragmatic leap to a pluralism in which ends are weighed in terms only of economic interest, with no escape from anarchy save through the appeal to functional solidarity.

From there, is no return to the state as serving a common moral ideal. The path from thenceforth is toward what may be called broadly the Marxian doctrine of economic determinism, in which the state serves the interests of the prevailing power of blind force. And who will say that there are more footprints leading back from that cave of shadows than from the lion's den of the Absolute?

In Mr. Laski's works the incline toward this realm of shadows is detected all along in his attitude toward the social context of force in which the state is set. The will of the state "is a will to some extent competing with other wills, and, Darwin-wise [!] surviving only by its ability to cope with its environment."²² On the other hand, the idea of sovereignty implied by the sovereign state, (which Mr. Laski thinks is being supplanted by this "Get on who can" struggle of group-forces), holds that the maintenance of a government capable of responsible expression of public opinion means the rule of law. But it need not try to carry Austin's province of jurisprudence into the extra-legal realm where opinion is being made. Austin himself made careful note to the contrary.²³ The protection of the freedom with which opinion may be developed and expressed is itself the most cherished right which men require the law to protect. And as for state responsibility, the doctrine of auto-limitation under which the state submits its own acts of government to judicial review is no more "meaningless" than is the ability of the individual to act in accordance with accepted moral norms which he freely chooses to follow. On pragmatic grounds, on the ethics of survivalism, Mr. Laski would be equally right in denying that freedom to each. As a matter of fact, that is what the doctrine of real corporate personality does more effectively to the individual than to the state, although Mr. Laski accuses Jellinek of meaningless theory in talking of auto-limitation on the part of the state. "For to be bound by one's own will is not, in any real sense, to be bound at all," he thinks.²⁴ How else than as auto-limitation can one explain the origin and development of constitutional states, where the limits of ordinary law are determined by the fundamental control of a constitution.²⁵

It is surely a more intelligible view of law to see in it the registration of community of purpose, the expression of an agreement among wills as to the conditions of their political association, than to treat it as the resultant simply of social reactions. On the latter view, which Mr. Laski accepts in effect in his "Translator's Introduction" to M. Duguit's Law in the Modern State, it is completely impossible to treat of any other bonds than those of organic social necessity. Purpose has no place in social solidarity which is taken for granted as a fact, and which means only that the strongest rule by right of might. If the state be the expression of social purpose, on the other hand, the doctrine of auto-limitation means that law itself is the vehicle for registering the moral will men bring to bear on politics. Constitutions, whether written, or practiced in the way all its critics have showed the English constitution is, alike present the safeguards of tolerance under which continuous political association is alone possible.

That this is "idealism" does not prevent it from being as well an a priori condition of political association without which the mere facts to which Mr. Laski makes his appeal lead only to "a state of nature" in which the conscious direction of the moral will play no part. Mr. Laski, as well as M. Duguit, sees in government only power "exerted in the interests of those who control its exercise. . . . It is the habit of government to translate the thoughts and feelings and passions with which it is charged into terms of the event and deem them the achievement of the State-purpose." Yet he admits that this is "progressively less true." And if it is progressively less true, it is because politically minded societies are becoming more and more clearly conscious of the state-purpose, and more and more effectively able to realize it.

"Regional" movements, the rise of groups of a voluntary nature, have, it is true, exerted a happy pressure upon government to conform to the degree of purpose which it must serve in the national state;²⁶ there is hope even of translating the wider community of purpose into a substantial international organization of justice, to take national concerns out of that Hobbesian state of nature on which Lord Bryce made a sorrowful comment in his address inaugurating the Institute of Politics of Williams College in 1921.²⁷ But this does not mean that the sovereignty of a people over affairs which concern them domi is not final as it operates through law. To challenge it in the name of one set of interests (trade unions) is the same fault that Mr. Laski has condemned as its abuse by another ("capitalism"). "No political democracy can be real that is not as well the reflection of an economic democracy," he lays down as a maxim. Yet no economic democracy can escape the necessity of a politically unified sovereignty of law, if it is not to degenerate into political tyranny by an autocracy of interests.

The "principle of federalism" to which Mr. Laski turns to establish this "polyarchism" of groups, sovereign in themselves, must find some common political sovereignty in an accepted state under law, or it must resolve itself into the feudal régime which his bolder speculations anticipate. It is to James that he turns for philosophic justification, again: "Everything you can think of," he quotes, "however vast or inclusive, has on the pluralistic view, a genuinely 'external' environment of some sort or amount. Things are 'with' one another in many ways but nothing includes everything or dominates everything. The word 'and' trails along after every sentence. Something always escapes. . . . The pluralistic world thus is more like a federal republic than an empire or kingdom. However much may be collected, however much may report itself present at any effective centre of consciousness, something else is self-governed and absent and unreduced to unity."²⁸

Federalism on this reading, means ultimate pluralism, the absence of a singly unifying relation.²⁹ So Mr. Laski continues, "We are urging that because a group or an individual is related to some other group or individual it is not thereby forced to enter into relations with every other part of the body politic. When a trade-union ejects one of its members for refusing to pay a political levy it is not thereby bringing itself into relations with the Mormon Church. A trade union may work with the State but it need not do so of necessity."³⁰ Let us take this fling at the Osborne Judgment as a test case. Must a trade union "work with the State" wherever its acts assume political character, that is to ask, must it act in conformity with the rule of law, or is it a sufficient source of authority to act upon its own law in its internal affairs, even where those affairs have an external bearing? And suppose it forbid its members to belong to the Mormon Church, for example, while attempting at the same time to enforce "closed shop?" Has the state nothing to say in its character of guardian of rights and enforcer of duties?

The legal status of the individual, as long as law is sovereign, assures the members of all associations equal protection in all the plurality of their relations, so long as they are brought under the uniting bond of citizenship. The law cannot, without surrendering its entire usefulness, admit the claims of nonpolitical associations to create law in its despite. There may be—and there unquestionably is at times—what James would have called "a genuinely 'external'" moral character to the acts of trade unions which the law does not reach. The changes in the law of labor disputes in England, which Professor Geldart so well traced show that the opinion which makes law is not insensible to that side of the matter." But for the union to take matters into its own hands where common law rights are at issue is not to be tolerated, any more than governmental infringements of constitutionally guaranteed liberty would be. The strength that is in union may be justly and legally used to prevent the economic exploitation of labor; but when it is put to the use of exploiting the helplessness of a community dependent upon the functioning of essential services, what M. Duguit has given so prominent a place under the title of "the public services which it is the sole duty of the law to secure," then indeed it is M. Duguit and not Mr. Laski who has the right of the matter: the law cannot remain indifferent. If it is called upon by such an actual challenge as Mr. Laski makes, it must establish its right to rule by the force with which it is endowed by the community will to law. M. Duguit's remarks on the "quelques milliers d'égarés et de criminels" who "wished, by fomenting a strike on the railroads, to starve out and to ruin the country," and "by creating misery and suffering, to realise some sort of Bolshevist revolution"³² show that he at least has gone very far with the changing times from that syndicalist leaning of which he was once accused. He still interprets law in terms of social force, but he faces the fact that social force reacts ruthlessly against those who would meet it with force to overturn the stability of ordinary intercourse.

Nothing breeds antagonism like an antagonistic attitude. One need not document the history of the coal strikes in England and America to show that where lawlessness has been invoked, even to such a terrible extent as "the Herrin massacre," which filled the American press in the summer of 1922, the attitude of government has necessarily changed character. At the same time one must look behind the actual occurrences to see whether or not there was not such provocation, by legal inactivity or worse, in the face of intolerable labor conditions, as to make the events almost necessary. The idealist view of the state need never blind its eyes to the pitiable travesty of law that sometimes soils the robes of justice. The report of the Inter-church commission which investigated the Steel Strike of 1919 is proof of the danger that is as real in that direction as is the counsel to violence in the other.³³ And if one may trust the files of The New Republic for several years back one may trace a condition of legally winkedat terrorism in West Virginia that could hardly have had any other issue, after what has been described as "the murder" of Sid Hatfield, a miner, by the Baldwin-Felts detectives hired by the coal operators. It appears that these "gun-men," of whom a considerable force were in the employ of the companies operating the mines, enjoyed in some instances the anomalous legal position of deputy-sheriffs, while at the same time their ostensible purpose was "to preserve order" by terrorizing the union organizers who were attempting to "unionize" the coal region in West Virginia. Murders and retaliations developed into a dramatic march of several thousand armed miners on the stronghold of the operators and detectives. A pitched battle was narrowly averted by the governor's intervention, although for some time a state of what amounted to a localized civil war actually existed.

No formal theory of the law can overlook such incidents without remaining merely formal. Industrial conditions are increasingly the concern of the law, and must be. Yet it is throwing the baby out with the bath-water to find that the existence of such crying evils means that the remedy lies in recognizing their necessity and resigning oneself to the rule of no law. What Mr. Laski calls the realistic view in political theory amounts to this: It attacks not the evils themselves nor their cause, but the very sovereignty of law to which it must in the end appeal for remedy, unless it is to rely on some solution like the "Social Myth" of M. Sorel's syndicalistic general strike. Not in abating the sovereignty of law, but in making it flexible to the increased demands a wider state-purpose puts upon it, lies the hope of good government. It is as little possible to contract the sphere of government to that "best government which governs least" of Jeffersonian democracy, as it is to do without government entirely.³⁴ The pragmatic attitude of intense individualism and distrust of office-bearers which characterized pioneer societies is out of place in so closely knit a unity as is formed by the modern state. And when that individualism is invoked in the name of "corporate persons" with a threat at the back, it can become socially dangerous.

NOTES

¹ Since the appearance of Mr. Barker's much-discussed article on "The Discredited State" (Political Quarterly, Feb. 1915) 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.

⁴Op. 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.

⁶The Problem of Sovereignty, p. 270.

⁷Ibid., 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 Professor Krabbe calls it (vid: The Modern Idea of the State, pp. 69-78). 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."

⁸Ibid. 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.)

¹⁰Commentaries I, 48.

¹¹Authority 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.

¹³Problem 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.

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

¹⁶ Willoughby and Rogers in An Introduction to the Problem of Government have recalled Grote'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."

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 the 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 opprobrium 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 Sir Paul Vinogradoff, Outlines of Historical Jurisprudence, Introduction, Chapter IV., Vol. I, 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 Jean Alazard, Paris, 1922 (ed. Bossard), and I Facismo ei Partiti politici, Collection R. Mondolpho, Bologna, 1923 (Cappelli), 4 vols. For its present relations to syndicalism see "Facismo Reform or Reaction," by James Murphy, Atlantic Monthly, Jan., 1924.

²¹The Great Society constitutes Mr. Wallas' effort to put the extremes of anti-intellectualism in their proper light, just as Human Nature in Politics had been an attempt at rebuking rationalistic idealism. See also Austin P. Evans, "Problems of Control in Medieval Industry," Political Science Quarterly, Dec. 1921, p. 603, 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 Guidsman's Interpretation of History, and G.D.H. Cole's attitude to medieval gilds, especially his 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. P. H. Douglas, American Journal of Sociology, Sept. 1923, is also of interest.

²²Problem of Sovereignty, pp. 13-14.

²³Jurisprudence, Sections 248-254. His description of legal sovereignty is applicable only to parliamentary government under a flexible constitution. Cf. Lord Bryce's Studies in History and Jurisprudence, Vol. I, Ch. 3, "Flexible and Rigid Constitution."

²⁴Authority 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. "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. Mr. Laski's criticism of the doctrine is founded on Duguit's often repeated attack: See Traité de droit constitutionnel, 2^èmc ed., Vol I. Chapt. 1 et passim, p. 307. Law in the Modern 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 impossible under the doctrine of auto-limitation of Jellinek."

²⁶ Mr. A, D. Lindsay's excellent summary of "The State in Recent Political Theory," Political Quarterly, Feb. 1914, 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).

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

²⁸ Quoted from James' Pluralistic Universe in The Problem of Sovereignty, p. 10.

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 Stephen Leacock, The Proceedings of the American Political Science Association, p. 37, Vol. V, (1908).

³⁰The Problem of Sovereignty, p. 10.

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

³²Traité 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 Kirby Page, Atlantic Monthly, May, 1922.

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.