Therefore before the names of just and unjust can have place, there must be some coercive power, to compel men equally to the performance of their covenants, by the terror of some punishment, greater than the benefit they expect by the breach of their covenant."(3*)Were people's characters in Hobbes's day really so bad as to war rant his assumption that none would perform their covenants in the absence of a coercive power and threatened penalties? In our day "the names of just and unjust can have place" quite apart from recognition of any coercive power. Among my friends I could name half a dozen whom I would implicitly trust to perform their covenants without any "terror of some punishment" and over whom the requirements of justice would be as imperative in the absence of a coercive power as in its presence. Merely noting, however, that this unwarranted assumption vitiates Hobbes's argument for State-authority, and accepting both his premises and conclusion, we have to observe two significant implications. One is that State-authority as thus derived, is a means to an end, and has no validity save as subserving that end: if the end is not subserved, the authority, by the hypothesis, does not exist. The other is that the end for which the authority exists, as thus specified, is the enforcement of justice -- the maintenance of equitable relations. The reasoning yields no warrant for other coercion over citizens than that which is required for preventing direct aggressions, and those indirect aggressions constituted by breaches of contract; to which, if we add protection against eternal enemies, the entire function implied by Hobbes's derivation of sovereign authority is comprehended.
Hobbes argued in the interests of absolute monarchy. His modern admirer, Austin, had for his aim to derive the authority of law from the unlimited sovereignty of one man, or of a number of men, small or large compared with the whole community. Austin was originally in the army; and it has been truly remarked that "the permanent traces left" may be seen in his Province of Jurisprudence. When, undeterred by the exasperating pedantries --the endless distinctions and definitions and repetitions -- which serve but to hide his essential doctrines, we ascertain what these are, it becomes manifest that he assimilates civil authority to military authority: taking for granted that the one, as the other, is above question in respect of both origin and range. To get justification for positive law, he takes us back to the absolute sovereignty of the power imposing it -- a monarch, an aristocracy, or that larger body of men who have votes in a democracy; for such a body also, he styles the sovereign, in contrast with the remaining portion of the community which, from incapacity or other cause, remains subject. And having affirmed, or, rather, taken for granted, the unlimited authority of the body, simple or compound, small or large, which he styles sovereign, he, of course, has no difficulty in deducing the legal validity of its edicts, which he calls positive law. But the problem is simply moved a step further back and there left unsolved. The true question is -- Whence the sovereignty? What is the assignable warrant for this unqualified supremacy assumed by one, or by a small number, or by a large number, over the rest? Acritic might fitly say -- "We will dispense with your process of deriving positive law from unlimited sovereignty: the sequence is obvious enough. But first prove your unlimited sovereignty."To this demand there is no response. Analyse his assumption, and the doctrine of Austin proves to have no better basis than that of Hobbes. In the absence of admitted divine descent or appointment, neither single-headed ruler nor many-headed ruler can produce such credentials as the claim to unlimited sovereignty implies.
"But surely," will come in deafening chorus the reply, "there is the unquestionable right of the majority, which gives unquestionable rights to the parliament it elects."Yes, now we are coming down to the root of the matter. The divine right of parliaments means the divine right of majorities.
The fundamental assumption made by legislators and people alike, is that a majority has powers to which no limits can be put. This is the current theory which all accept without proof as a self-evident truth. Nevertheless, criticism will, I think, show that this current theory requires a radical modification.
