The problem of sovereignty is reduced, in the real world, to the control of specific acts of particular sovereignty. It is not one problem but many problems; for there is no one abuse of sovereignty, there are only abuses, various in form and often markedly different in degree. A quest is a quest for solutions to the problems generated by the multiple cases of abuse of power. Now of such abuses a necessary distinction must be drawn between those abuses associated with the acquisition of power and those resulting from how that power, once acquired, is exercised. In the first instance, the fundamental abuse is the usurpation of the legal authority itself, the acquisition of sovereignty by unconstitutional or wrongful means.
Critics (Bartelson1995) admit that in the construction, sovereignty is abused not so much because it is acquired illegitimately but because a government acts unlawfully or oppressively, i.e., it acts contrary to justice and law. One who knows or who observes no restraints on his, impulses and desires is of necessity an arbitrary ruler, for he tends always to go to the limit of his sovereignty, doing whatever his strength and his opportunities enable him to do. Indifferent to what other men might regard as the elementary dictates of human decency, he does not scruple to deprive his subjects of their rights even when there is no compelling reason for him to do so. To speak of justice or the unwarranted deprivation of rights, however, is to raise certain difficulties, for these are matters of disputation, and they are likely to remain so. Rights, for example, have most commonly been held to be those claims assured to men by the political system under which they live or by the moral code to which they give or ought to give their allegiance. These two sources of rights are not necessarily connected. They may be intrinsically opposed. Thus, Calvin’s reading of Christian doctrine would not permit him to accept the sovereignty notion of political equality. Where discussion has failed satisfactorily to resolve a conflict among men as to what their rights are, the resort has too often been had to trial by combat (Wilks, 2003). Whatever we take the basis of right conduct to be–whether it be the principles of the legal order or the dictates of an ethical system–it remains clear that an action of the ruler which unjustifiably interferes with what are conceived to be the rights of men is in this construction vexatious and oppressive (Blackstone, 2000).
Arguments “against” state of sovereignty are based on the idea that one is whether the principle of consent is indeed a valid principle of authority. A second is whether sovereignty, even though based on consent, is not itself prone to invidious action. To be specific, what is there to prevent such action by a self-governing state, by a government whose arbitrary and oppressive acts are supported by a majority of the people? If uncontrolled sovereignty is intrinsically mischievous, uncontrolled popular sovereignty is not less so; and a democratic government exempted from any necessity of being in the right might be as likely to abuse its subjects as would an oligarchical government (Weber, 1995). Consent, that is to say, does not require that the government which acts in the name of the state by the government of one’s choice. It implies only that the citizen is prepared to recognize as legitimate that government that emerges out of the accepted electoral process to sovereignty. Otherwise, the fact that he may have cast his vote for the defeated political party would relieve him of all obligation to obey the laws; and this, it seems hardly necessary to add, is not a principle on which a state can long hope to survive (Skinner, 2000).
Through the latter, sovereignty maintains–and can alone maintain–that free play of conflicting opinions which makes possible the constitutional responsibility of the rulers to the ruled, which makes government responsive to the governed. Through the former, sovereignty assures not (as some critics of sovereignty have absurdly held) the literal equality of all men in all things–viz., in intelligence, talent, achievement, status, sovereignty, and the like–but that equal access to public opportunity which enables a man to discover and to prove his true worth, and that political equality which counts each man in his suffrage and his citizenship as one and no more than one (Skinner, 2000). This does not, of course, imply the right of a person to become a member of a private club or a church society, or to become, say, a teacher in a denominational institution; for such membership is not central to his life as a citizen. But it does imply his right not to be barred on irrelevant grounds from an occupation or profession, for these are essential to his opportunities–even, perhaps, to his survival–as a citizen. of the sovereign state. For this and allied reasons, one at least among the necessary corollaries to these rights merits special mention: the right to one’s safety and security in his person (Blackstone, 2000).
In these terms, the history of states reveals a considerable disparity between the principles that men verbally espouse and the practices by which they live. This is not, it must be emphasized, the easy and all too superficial distinction that men often make between theory and practice; for, at the empirical as distinct from the ideal level at least, there is no such distinction. If a principle is valid in theory, it must be valid in practice; if it does not work in practice, there is something wrong with the theory, or the theory involved is different from the theory that is thought to be involved. It is this latter alternative that applies here. The disparity between democratic utterance and undemocratic behavior is not simply that between reference to an ultimate and unattainable ideal, on the one hand, and action within a political system that–even at best –is always but an imperfect approximation of its acknowledged prototype, on the other. It is this in part, to be sure, but it is also more (Schleicher, 1999). It is also a disparity that emerges when there is a true conflict of principles–a conflict between, say, the idea of equality and that of inequality, between the rights associated with (because integral to) a sovereign state and the denial of those rights as matters of principle in oligarchic systems of government. And this disparity manifests itself most strikingly–and for the preservation of sovereignty most destructively–in the fact that within democratic communities there are those who, whether acting through legal sanctions by the governments they control or through non-legal penalties by the social and economic sovereignty they command, impose punishments which impair, in extreme cases even make a mockery of, those rights of their fellow-men that have been here termed fundamental. By their effective–sometimes malevolent, sometimes unreflective–disregard of principles of sovereignty, they have abused the sovereignty entrusted to them (Skinner, 2000).
There is a clear and plausible reason for this. If the oppressive acts of nonlegal sovereignty s violate the law, the government can suppress them. If they are acts that have the implied or explicit sanction of the government that government can be held to share or to assume responsibility for such action. In both cases, therefore, the problem of the abuse of sovereignty appears to revert to the legally established political sovereignty; and it is here, accordingly, that writers on this subject have most commonly focused their attention. There are, however, at least two difficulties that attend to this lack of concern for the oppressive actions of nongovernmental sovereignty (Peaslee, 2002). In the first place, it overlooks the fact that in a free society the government lets many things alone, and in some instances, it is constitutionally required to do so; hence individuals and groups are free to conduct their affairs in ways to which the government is formal if not indifferent. Thus, employers are often free to engage in discriminatory employment practices, nondenominational universities to establish (or in practice to apply) discriminatory entrance requirements, private organizations arbitrarily exclude disliked individuals or groups from the use of their halls for public meetings, and so on. This may be called the problem of abuses of sovereignty within the interstices of the law Schleicher, 1999).
Now in sovereignty, where men are regarded as equals, the tyranny of public sentiment, so understood, may take a special form. Unanimity being impossible, the opinion of the majority rather than of the minority must prevail–not because the majority is necessarily right but because the alternative, the rule of the minority which renders the few superior to the many, is insufferable. But if the majority is to prevail with an easy conscience, it can do so, generally, only if it believes, or convinces itself that it believes, that it is right. Hence, the customary insistence that men should obey the ruling sovereignty is defended not simply on the ground that such obedience is necessary for the maintenance of the social order (which is perhaps all that should be claimed), but that it is necessary for men to obey because that ruling sovereignty is right (Peaslee, 2002). The individual who dissents from the judgment of the majority, who refuses to adhere to the opinions of the ruling sovereignty, thereby appears to place himself in an anomalous position. As a democrat, he argues that all men are equal. But as a dissenter, he seems to insist that he knows better than the majority what is right. He implies or seems to imply, that he (or his judgment) is better than that majority, thereby seeming to affirm the very principle of inequality that he, along with the majority, had previously repudiated. His obstinacy no less than his apparent inconsistency serves only to arouse the animosity of those who are opposed to him and who commands the support of the majority. Paradoxically, then, the principle of equality–which is here improperly extended to include moral and intellectual uniformity as well as political equality-enters to reinforce that terrible craving for certainty which all too often results in the effort to suppress disconcerting differences. And it is this intolerance–of heterodoxy in belief and nonconformity in behavior–that constitutes (for some men) the tyranny of opinion and, derivatively, of majority rule (Larson, 2004).
The “for” argument is that sovereign governments are not tyrannical by nature; for by resting on the empirically determined (rather than assumed or fraudulently determined) will of the people they validate their first claim to legitimacy. But they remain potentially tyrannical in their actions; for in sovereignty (no less than in oligarchy) diverse interests and diverse conceptions of justice still exist and vie for sovereignty, and in the course of that struggle, men may sometimes engage in practices and promulgate ideas that are difficult to reconcile with the principles of their political system (Larson, 2004). Within it, conflicts of interest are neither eliminated nor still. They are rather transferred to a different battleground and the contenders are supplied with different weapons. Where, in oligarchical States, the arena is restricted to a select group that commands the instruments of coercion in sufficient degree to forestall effective opposition to the promotion of its interests, in democratic states that arena is thrown open to all men and all interests, and the instruments of persuasion are, or ought to be, sufficiently undisturbed as to permit that interest or coalition of interests which can marshal the support of a majority of the people to prevail. Thus, while all men are equal and the interests of all are, in principle, given an equal opportunity to be heard, not all can expect equal satisfaction. So long as there is a conflict of interests–and some interests, though not all, inevitably conflict– sovereignty, like an oligarchy, can do no more than striving to protect the interests of some and not of all men. Unlike oligarchy, however, the democratic state makes it possible to secure the interests of the many, or at least of the majority, rather than the interests of a privileged few (Klein, 2000).
A necessary and important qualification must be entered here, for what makes such conflicts of interest possible, what sustains the state under whose aegis they occur, is a broad and underlying consensus on the fundamentals of the social order. No state –least of all a democratic state–can hope to survive where the masses of the people are not united on and attached to those essential principles, and in this respect, there is a common interest at the heart of, and that is furthered by sovereign governments. There are many things–e.g., the preservation of the peace, the maintenance of the vital liberties, the advancement of learning, the cultivation of the arts, and the like–which are advantageous and (avowedly at least) of concern to all; and the commitment to such common values overrides and makes tolerable the lesser conflicts of separate and dividing interests. Nevertheless, those dividing interests remain, and their proponent’s struggle (sometimes bitterly) for sovereignty (Klein, 2000). Majorities–even if but temporary and shifting majorities–are formed over against minorities. And in the pursuit of their interests, aggravated at times by the heat of political passion, majorities–and, where they can, minorities too–resort now and again to arbitrary and oppressive measures. It is not surprising, therefore, that governments representative of and responsible to those majorities should serve as instruments through which such oppressive actions can be effectively imposed (James, 1988).
This is not to say that sovereignty –any more than oligarchy–gives dissenters a right to act contrary to laws. It is one of the marks of sovereignty that it, alone of the forms of state, makes it a primary principle that those who disagree with the fundamentals of the political system or with the policies of a particular government in sovereignty have the right both to plead for a change in that system or its policies–to speak in opposition to the laws–and to organize into appropriate political associations in order more effectively to press for the removal of that government, or for the modification or dissolution of the political system itself. So long as that opposition foregoes violence and moves only in the realm of opinion, seeking through persuasion and the recognized modes of political activity to enlist the opinions and votes of others in its cause, it plays a legitimate and indispensable role in the sovereign order. A state that accepts this principle must accept also its possible consequences, hazardous as these may sometimes appear to be. For by placing no idea beyond criticism, by elevating no principle –including the principle of sovereignty itself–into a religious dogma that is to be venerated or at least unquestioningly accepted, it submits not only the life of its momentary government but the validity of the state itself to the verdict of public opinion. Thus, whatever its inner confidence or fears, the sovereign state must be prepared to live always in a state of ideological siege and political turmoil, even, possibly, of drastic political change. British practice, however, has not always been in keeping with avowed and necessary standards of sovereignty conduct. The dissenter, to be sure, has most commonly been viewed with amusement; but he has also, on occasion, been regarded with fear and distrust. He has been treated as a harmless eccentric, but also, at times, as a dangerous enemy (James, 1988).
The fact that not all private powers respond to this situation in the same way–Harvard University, for example, withstood the fulminations of an aggressive Senator and refused to expel certain professors who had invoked the Fifth Amendment to the Constitution when declining to answer certain questions put to them by a congressional investigating committee –does not alter the wider fact that those committees have all too effectively succeeded by such tactics in having men punished for lawful but disapproved conduct (Friedrich, 2000). There is, I must add, something contemptible and not a little terrifying in this appeal to private powers to come to the aid of a faltering government, when that government also represents itself as a proud and powerful champion of freedom, fair play, and decency (Hinsley 1086).
It is not contended here that sovereign governments must act oppressively–indeed, I know of no inexorable laws in the conduct of human affairs–or that it is a just characterization of the sovereignty to say that it is solely or dominantly despotic. What is argued is that democratic governments can and on occasion do abuse their sovereignty. To sustain this argument, and no more than this argument, it is not necessary to balance the respective acts of democratic and oligarchic governments or to weigh the relative importance of the oppressive and non-oppressive sides of democracy (Friedrich, 2000). It is enough to show, through random or selective cases and incidents, that arbitrary and vexatious rule is not unknown even in a democratic state; and if such abuses of sovereignty are real, they cannot without grave peril be ignored. The problem of minority rights is of necessity an exceptional one, for the minority by definition is comprised of the dissenters to a prevailing view. Freedom of speech, for example, is vital primarily to those who object to, not to those who applaud, a given view; and it is most vital to those who object the most. But since those who applaud now may on a later occasion stand to protest, the democrat insists on protesting at all times the invasion of basic rights. For him, the exceptional case is thus transformed into the typical case; it is democracy’s ordeal by fire, the supreme test of a principle’s capacity to survive (Bodin, 2002).
That these cases constitute but a temporary deviation from the sovereignty norm is a proposition that is not easy to defend. The problems of racial and ethnic discrimination, of the mistreatment of political nonconformists, and the like have been with us after all, a long time, some since the very beginnings of the Republic. They are the products or manifestations of deep-seated fears and hatreds, of cultivated prejudices and a narrowly conceived self-interest; and these are exacerbated, not weakened, in a time of crisis (Bodin, 2002).
In sum, these and other infringements of sovereign issues accepted by democratic governments are to be explained in terms of the malevolence or incompetence of the rulers, and not in terms of the principle of sovereignty itself. As a partial explanation, this is unquestionably true. But it overlooks the fact that there is often much harm in what even “good” men do; and it fails to explain how such malevolent and incompetent men acquired sovereignty in, the first place. Sovereignty –like other forms of state–does not exclude such men from positions of leadership and control; nor does it prevent them from using (or abusing) their powers to deprive other men of their basic rights. To the extent that a sovereign system makes this possible, to the extent that it exposes its citizens to arbitrary and invidious measures, it is vulnerable–as a system of government-to oppressive rule.
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