第 2 节
作者:梦幻天书      更新:2021-02-27 00:32      字数:9321
  analysis would have been affected; if he had begun in his first
  Lecture with the examination of the nature of Sovereignty。 This
  examination he placed in the Sixth; which; so far as the
  'Province of Jurisprudence' is concerned; is the last of his
  Lectures。
  I believe I may assume that most of my hearers are familiar
  with the general character of the investigation prosecuted by
  Austin in the Treatise to which I have referred; but; as his
  definitions are not easily carried in the memory in their
  complete shape; I will give his descriptions of an Independent
  Political Society and of Sovereignty; the two conceptions being
  interdependent and inseparable from one another。
  'If (he says) a determinate human superior; not in the habit
  of obedience to a like superior; receive habitual obedience from
  the bulk of a given society; that determinate superior is
  Sovereign in that society; and the society; including the
  superior; is a society political and independent。'
  He then proceeds: 'To that determinate superior the other
  members of the society are subject; or on that determinate
  superior the other members of the society are dependent。 The
  position of its other members towards that determinate superior
  is a state of subjection or a state of dependence。 The mutual
  relation which subsists between that superior and them; may be
  styled the relation of Sovereign and Subject; or the relation of
  Sovereignty and Subjection。'
  I may perhaps save the necessity for part of the
  amplification and explanation of these definitions contained in
  the Chapter in which they occur; if I state Austin's doctrine of
  Sovereignty in another way  more popularly; though without; I
  think; any substantial inaccuracy。 It is as follows: There is; in
  every independent political community  that is; in every
  political community not in the habit of obedience to a superior
  above itself  some single person or some combination of persons
  which has the power of compelling the other members of the
  community to do exactly as it pleases。 This single person or
  group  this individual or this collegiate Sovereign (to employ
  Austin's phrase)  may be found in every independent political
  community as certainly as the centre of gravity in a mass of
  matter。 If the community be violently or voluntarily divided into
  a number of separate fragments; then; as soon as each fragment
  has settled down (perhaps after an interval of anarchy) into a
  state of equilibrium; the Sovereign will exist and with proper
  care will be discoverable in each of the now independent
  portions。 The Sovereignty over the North American Colonies of
  Great Britain had its seat in one place before they became the
  United States; in another place afterwards; but in both cases
  there was a discoverable Sovereign somewhere。 This Sovereign;
  this person or combination of persons; universally occurring in
  all independent political communities; has in all such
  communities one characteristic; common to all the shapes
  Sovereignty may take; the possession of irresistible force; not
  necessarily exerted but capable of being exerted。 According to
  the terminology preferred by Austin; the Sovereign; if a single
  person; is or should be called a Monarch; if a small group; the
  name is an Oligarchy; if a group of considerable dimensions; an
  Aristocracy。 if very large and numerous; a Democracy。 Limited
  Monarchy; a phrase perhaps more fashionable in Austin's day than
  it is now; is abhorred by Austin; and the Government of Great
  Britain he classes with Aristocracies。 That which all the forms
  of Sovereignty have in common is the power (the power but not
  necessarily the will) to put compulsion without limit on subjects
  or fellow…subjects。 It is sometimes extremely difficult to
  discover the Sovereign in a given State; and; when he or it is
  discovered; he may fall under no recognised designation; but;
  where there is an independent political society not in a
  condition of anarchy; the Sovereign is certainly there。 The
  question of determining his character is; you will understand;
  always a question of fact。 It is never a question of law or
  morals。 He who; when a particular person or group is asserted to
  constitute the Sovereign in a given community; denies the
  proposition on the ground that such Sovereignty is an usurpation
  or a violation of constitutional principle; has completely missed
  Austin's point of view。
  The definitions which I read from the Sixth Lecture furnish
  Austin's tests for discovering the seat of Sovereignty in
  independent states。 I will again refer to a few of the most
  important of them; though very briefly。
  First; the Sovereign is a determinate human superior。 He is
  not necessarily a single person; in the modern Western world he
  is very rarely so; but he must have so much of the attributes of
  a single person as to be determinate。 If he is not a single
  person; he must be a number of persons capable of acting in a
  corporate or collegiate capacity。 This part of the definition is
  absolutely necessary; since the Sovereign must effect his
  exertions of power; must issue his orders; by a definite exercise
  of his will。 The possession of physical power; which is one
  characteristic of Sovereignty; has as matter of historical fact
  repeatedly been for a time in the hands of a number of persons
  not determinate; not so connected together as to be capable of
  exercising volition; but such a state of things Austin would call
  anarchy; though it might not have all the usually recognised
  symptoms of a revolutionary interval。 At the same time; the
  limitation of Sovereignty to determinate groups; when the
  Sovereign is not an individual; is extremely important; since it
  qualities the notion of Sovereignty by rendering it subject to
  the various artifices by which an exercise of volition is
  elicited from a corporate body。 Familiar to us as is the practice
  of taking the opinion of a majority as the opinion of an entire
  group; and natural as it seems; nothing can be more artificial。
  Again; the bulk of the society must obey the superior who is
  to be called Sovereign。 Not the whole of the society; for in that
  case Sovereignty would be impossible; but the bulk; the large
  majority; must obey。 After the accession of the House of Hanover
  to the British throne; a certain number of Jacobites and a
  considerable portion of the Scottish Highlanders habitually
  disobeyed or disregarded the commands of the British Crown and
  Parliament; but the bulk of the nation; including no doubt the
  bulk of the Jacobites themselves; gave to these commands a
  practical obedience。 On Austin's principles; therefore; there is
  not the least ground for questioning the Sovereignty of George
  the First and Second and of the Parliaments elected at their
  summons。 The Jacobite view; that the Hanoverian Kings were
  exclusively Sovereign in Hanover; would at once be throw aside by
  Austin as not raising that question of fact which is alone
  disputable under his system。
  Next; the Sovereign must receive an habitual obedience from
  the bulk of the community。 In European societies professing the
  Roman Catholic faith; the great majority of the population
  receives a variety of directions on points of personal conduct;
  either mediately or immediately; from the See of Rome。 But;
  compared with the number of times it submits itself to the laws
  of the country it inhabits; its obedience to these extrinsic
  commands is only occasional; and not habitual。 At the same time a
  dim appreciation of the principles brought into light by Austin
  may be detected in several famous ecclesiastical controversies;
  which sometimes tend to become disputes whether the obedience to
  the See of Rome which is actually paid is or is not so frequent
  as to fall under the description of habitual。
  A further characteristic of Sovereignty is immunity from the
  control of every other human superior。 The limitation is
  obviously necessary; for otherwise the Governor…General of India
  in Council would be Sovereign; and indeed would exhibit a closer
  correspondence with the more salient features of Sovereignty than
  almost any other potentate on the face of the globe。
  Those who have observed with what slowness definite
  conceptions are developed in the field of history and politics
  will be prepared to hear that this whole view of the nature of
  Sovereignty is older than Austin's work。 But; so far as my own
  knowledge extends; I do not think that any material portion of it
  is older than Hobbes。 On the other hand; in the Leviathan of
  Hobbes and in the Chapter De Cive in his Treatise first published
  in Latin; called the Elementa Philosophiae; the