The problem of good government is really one of proper relationship between the legal and political sovereignty. In a ‘direct democracy, as, for example, existed in ancient Greek city-States, the two practically coincided, because the people assembled and decided everything. The people were at once the legal and political sovereigns. But this cannot be so in the modem indirect democracies, which have representative governments, responsible to the people or electorate. The people, by voting and electing representatives indicate to the legislature, the legal sovereign, the type of laws they desire. But the political sovereign, the electorate, is influenced by the political parties, the press, public speeches and even friendly talks.
In this way the political sovereign really manifests itself by voting, by the press, by speeches, by intelligent conversations and by various other ways, which cannot be easily described. It does not directly make the laws, but it lays down the conditions and terms within which they shall be made by the legal sovereign. In short, though the political sovereign is legally unknown, unorganised and incapable of expressing the will of the State in the form of laws, yet the legal sovereign will bow to him in practice and will express it ultimately.
In despotic monarchy, the relation between the legal sovereign, i.e. the king and the political sovereign, is not so close and effective. Yet the king also depends upon the support of his army, his friends and class of nobles to rule. In all States, whether despotic or democratic, the legal sovereign is limited by the political sovereign. Professor Ritchie illustrated this fact by citing the example of the despotic government of the Russian Czars in these words: “the Czar of all the Russians rules by the will of his people, as much as does the executive of the Swiss Federation”. The only difference is that the political sovereign in a despotic State is not as broad-based as in a democratic State.
The presence of the legal and political sovereigns in a State should not lead us to think that there are two sovereignties in it, or that sovereignty is divided into two. Really legal and political sovereigns are two different channels for the manifestation of the one and the same sovereignty or will of the State. There are two aspects of sovereignty, expressed through two channels: in its legal aspect by the deliberations and decisions of the legislative organ and in its political aspect by the votes of the electorate and the activities of the political parties, the press, and other agencies of public opinion. Law is and must be the manifestation of the will of the people. But the people cannot directly legislate.
They first discuss their problems and needs among themselves, guided and influenced by the political parties and leaders, and educated and enlightened by the press and platform. Then they elect their representatives, the legal sovereign, who frames laws in accordance with their wishes and opinions expressed before and after the elections. Thus the legal sovereign becomes limited and conditioned by the political sovereign, although in law it alone is competent to make laws. In this way the former mirrors the opinion of the latter. If, for example, the members of a particular Parliament do not reflect it, they will not be re¬elected at the next elections, but some other persons will be elected in their stead.
Criticism
The theory of political sovereignty is criticised by Leacock on the ground that the political sovereign is difficult to locate; “the more one searches for this final authority, the more it seems to elude one’s grasp”. The search for him is like the quest of the philosophers for the “first cause”. The voters are obviously not the political sovereign, because they are influenced by the propaganda of the political parties and the press, and may even be under the influence of selfish and crafty leaders and demagogues.
Public opinion is so fluctuating and vague that it cannot be called a sovereign: it is difficult to say when it is public and when it is opinion. Furthermore, the complexion of the political sovereignty is ever-changing, vague and different in different States. “In one State,” writes Leacock, “the priesthood, in another the military or landed classes, in another the personal entourage of the king or the predominant influence of the metropolis, might supply the real motive power that controls the public administration”. So the political sovereign is not as precise, exact and determinate as the legal sovereign.
But this criticism misses the real point. The theory of political sovereignty does not aim at the refutation or rejection of legal sovereignty. On the contrary, it accepts the existence of the legal sovereignty. What it rejects is its omnipotence and omni-competence. For law and law-courts, the legal sovereign is the final, omnipotent and determinate power or source of law. But, for political life and political obligation the theory of legal sovereignty does not fully and satisfactorily explain the nature and location of sovereignty. It does not explain the true reason why the citizens should obey the law.
The theory of political sovereignty corrects these shortcomings and gives us the basis of political obligation and explains the real nature of modern democracy. Political power and obligation must be grounded on the consent and will of individual voter. As McKenzie says, “The will of the legal sovereign is or should be the authorized embodiment or manifestation of the will of the political sovereign. If the popular will is accurately expressed by the legal sovereign, the power of the people is effective, otherwise it is not”. In other words, the legal sovereign, the parliament, is omnipotent only so long as it expresses ‘the will of the people, their hopes and desires, needs and wishes. Should it disregard them, it would be repudiated by the voters. “Parliament itself would be purged of its offending members. Parliament is master, can utter valid commands, only so far as it interprets, or at least does not cross the wishes of the people”.