in Austin’s famous definition. The Sovereign is “a determinate human superior, not in a habit of obedience to a like superior, but receiving habitual obedience from the bulk of a given society.” Where Sovereignty is placed is, on this view, a question purely of fact, and never of right. We have only to seek out the determinate human superior in a given society, and we shall have the Sovereign. In answer to this theory, it is not enough, though it is a valuable point, to show that such a determinate superior is rarely to be found. Where, for instance, is the Sovereign of England or of the British Empire? Is it the King, who is called the Sovereign? Or is it the Parliament, which is the legislature (for Austin’s Sovereign is regarded as the source of law)? Or is it the electorate, or the whole mass of the population, with or without the right of voting? Clearly all these exercise a certain influence in the making of laws. Or finally, is it now the Cabinet? For Austin, one of these bodies would be ruled out as indeterminate (the mass of the population) and another as responsible (the Cabinet). But are we to regard the House of Commons or those who elect it as forming part of the Sovereign? The search for a determinate Sovereign may be a valuable legal conception; but it has evidently nothing to do with political theory.
It is, therefore, essential to distinguish between the legal Sovereign of jurisprudence, and the political Sovereign of political science and philosophy. Even so, it does not at once become clear what this political Sovereign may be. Is it the body or bodies of persons in whom political power in a State actually resides? Is it merely the complex of actual institutions regarded as embodying the will of the society? This would leave us still in the realm of mere fact, outside both right and philosophy. The Sovereign, in the philosophical sense, is neither the nominal Sovereign, nor the legal Sovereign, nor the political Sovereign of fact and common sense: it is the consequence of the fundamental bond of union, the restatement of the doctrine of Social Contract, the foreshadowing of that of General Will. The Sovereign is that body in the State in which political power ought always to reside, and in which the right to such power does always reside.