The modern theory of sovereignty is . . . a theory of political organization. It insists that there must be in every social order some single center of ultimate reference, some power that is able to resolve disputes by saying a last word that will be obeyed. From the political angle, such a view . . . is of dubious correctness in fact; and it is at least probable that it has dangerous moral consequences . . . It would be of lasting benefit to political science if the whole concept of sovereignty were surrendered.
Harold Laski was a political theorist most famous for his socialist activism and his prominent role as a Marxist apologist for the tyranny of Joseph Stalin. He earned lasting infamy (though, alas, he continues to receive from most of his fellow academics only praise and support) for his self-inflicted credulity in the face of “progressive” oppression. His conversion to Marxist apologetics is rendered even more inexcusable by his early recognition of inconsistencies with then-existing political and legal orthodoxies that were often used to justify centralizing political power. His skepticism regarding the legitimacy of centralized power had for decades pushed him toward an understanding of the plural structure of society and the need for limited government.
Of central concern to Laski was the concept of sovereignty. The modern theory of sovereignty was developed by early-modern apologists for absolute monarchy—principally the Frenchman Jean Bodin and the Englishman Thomas Hobbes. It held that every political community had one indivisible seat of power or “sovereign.” To attempt to divide such power (which sovereignty’s opponents identified with a single entity) might prove futile or, worse, fatal to the state. Thus, Hobbes blamed the chaos of the English Civil Wars on Parliament’s claim to a share of what he thought was the king’s absolute, indivisible, royal power. Power must be whole and absolute somewhere, on this view, or there will be chaos.
Sovereignty was not, however, set forth principally as a call to moral action or inaction. It principally was seen as an analytic fact. All nations have indivisible sovereigns, on this view, be they king, parliamentary cabinet, or people. Somewhere this unquestioned, unlimited power lies if there is a political community. Laski was among the most important (and among the very few nonreligious) critics of this view of politics, with its heavily centralizing tendencies. It is worth noting the analysis on which his criticism rests.
In his 1917 book, Studies in the Problem of Sovereignty, Laski took aim at the legal positivism of thinkers like John Austin, who claimed that the British Parliament was “sovereign” because its commands, which most of us call “laws,” are habitually obeyed. Austin had claimed that a law is simply a command that is obeyed out of habit. Because the state’s laws are so obeyed, and the state’s laws are creatures of Parliament, it was obvious to Austin that Parliament was “sovereign.” But, Laski pointed out, it simply is not true that the state is the only object of people’s obedience. Indeed, only in what we today would recognize as a totalitarian state would it not be the case that people have loyalties of high order, even perhaps as high and deep as that to the state, to other associations.
Powerful as the state had become, and entrenched as people’s loyalty had become to that state, Laski recognized that they held the same kind of loyalty to associations like their church or trade union. Loyalties to these different associations differed in degree but not necessarily in kind from that to the state. “The force of a command from the State is not, therefore, bound to triumph and no theory is of value which would make it so.”
Laski’s phrasing is important, here, because it indicates the nature of the theoretical claims of sovereignty. Sovereignty is not simply a damaging idea; it also is a false claim. It is an ideological concept in the technical sense that it evokes a second, false reality that its proponents attempt to impose on the genuine reality of social and political life. It is not the case that our primary, let alone our sole, loyalties are to the central political state. But thinkers like Bodin and Hobbes wished it to be so. The case of church-state relations (a particular concern of Laski’s) is important in this context. Both Bodin, in justifying oppression of French Protestants, and Hobbes, in seeking to undermine the claims of Calvinist dissenters, were writing for their own times and as partisans of embattled royal power. They sought to convince people that there was no logical choice but to bow down to the central power, if they did not wish to unleash a war of all against all.
But Laski, like many religious figures before, during, and after his time, saw that the division of power is merely recognition of “a pluralistic world.” Even in monarchies, individual persons retained the right and power of judgment regarding laws, governments, and other associations they might join or leave. The tragedy, for Laski, was that he lost sight of the necessity of defending the primary associations—and especially the church—against attempts by the state to subsume them in itself. A state that begins by taking over the functions of more local and fundamental associations soon demands the loyalty of those who are members of such associations and ends by seeking the destruction of all competing associations so that it may “better serve” its own ends. Those ends may be presented in the most benign light imaginable (e.g., today’s drive for “nondiscrimination” and “the right to choose”). But the state will use them as justification for forcing the church and other local associations—including even the family—to bow to its demands, its goals, and its power.
Laski was right to question the concept of sovereignty. Would that he had recognized that sovereignty is not merely a concept. It also is a political ideology that can drive political actors like Stalin to seek total power over society. The result is totalitarian tyranny in the name of unrealistic goals, whatever those stated goals might be.
Bruce P. Frohnen is Professor of Law at the Ohio Northern University Pettit College of Law.