considering and rejecting a whole host of theories of political philosophers
and jurists, including those of Bodin, Hegel, Hooker, Hobbes, Locke,
Rousseau, Fichte, Kant, Austin, Brown, Dicey, Willoughby, Duguit, and
Laski, he opines: (at p. 51) :
"As Dewey says, the forces which determine the government are
sovereign. The effective social forces are not the Union, nor the States, nor
the oligarchy of States, nor the organs of Government, nor the Constitution,
nor natural law, but those forces which created these organisations and
agents and institutions, and to whom they are all ultimately responsible."
According to him, the "Sovereignty of the People" which he advocates does not
mean an anarchic license given to each individual or group to do as he or it
pleases, but stands for the power of the people, "organised in Government to
express and adjust their will either directly or through representatives". He
explains in the rest of his work, how the government of the U. S. A. in the
broader sense of all that social control which, operating through the three
departments of State, has to take place in accordance with the Constitution.
This concept of a nation "organised in Government" appears to me to clearly
introduce the idea of a Constitution which lays down what that organisation
is and how it must operate. Although Prof. Willis rejects the view that the
Constitution is "Sovereign" because it can be altered by the people, he is
obliged to accept something resembling it because he sees that the "people",
thought of as a mere aggregation or an amorphous mass, is too nebulous. Any
satisfactory theory of sovereignty must account for the power of the people to
act in certain ways or to move in certain directions. A 'hydra-headed'
multitude or mass of people will not know how to act or in which direction to
move. It is its "Organisation" which provides that. And, its effort to organise
itself and to rationalise will produce a Constitution for it which embodies its
will as organised in the form of a government. The will of the people is thus
inseparable from a constitution which enables it to be expressed and then to
govern. The constitution neither is nor can be sovereign in the sense that the
people who made it cannot unmake it or change it. It only prescribes the
correct mode of doing everything, including that of changing the very system
of Govt. It is only in this sense that it can be "Sovereign" or "supreme" and
rule the life of a nation."
566. Another American writer, Willoughby, has put forward the view that
sovereignty, as an attribute of the State, conceived of as a juristic entity
apart from its governmental organs, cannot be legally limited. According to
him, to limit it is to destroy it. He says (See: Willoughby on "Fundamental
concepts of Public Law — Tagore Law Lectures, 1924, at p. 77): "There would
seem to be no more value in attaching legal rights and duties to the sovereign
State than there is in predicating the attributes of goodness and justice of a
Dvine Being who is regarded as Himself the creator, by His own unrestrained
will, of all distinctions between goodness and badness". But, this seems more
a metaphysical than a realistic, more amoral Hobbes-Machiavellian than a
Dante-Gandhian stance. If one's concepts of the divine Being are to be
introduced into law, one could refer to those also which see Divinity only in
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