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National Sovereignty Versus the Rule of Law

Published online by Cambridge University Press:  01 August 2014

Walter Sandelius*
Affiliation:
University of Kansas

Extract

So evident has become the reality of the international community on the one hand, and that of occupational groups on the other, that sociology, which is more concerned with social tendencies than with formal doctrine of any kind, has largely discarded the idea of the sovereign nation-state. But juristic science in considerable measure still clings to it. This is true because the latter is naturally more concerned than sociology with the conservative function of legal formalities. Yet the progressivist influence that sociology has already exerted upon legal concepts is likely to continue; which means that the present sociological insistencies will more nearly correspond with the legal ideas of tomorrow than they do with those of today. Law, in order to maintain its function, must of necessity feed upon the fresh materials of change; to live, it will, in the long run, have to conform to moral and social needs. Morality, which is always at least a step ahead of the law, requires to be followed by the law, for the sake of the life of both, at a distance neither too great nor too short. For the law that follows too closely upon the heels of morality, no less than that which is too far behind, fails to be generally respected and enforced. Legal development is in constant need of being harmonized with all the other strands of history, to the end of the good life. This historic propriety is the ideal not only for the content of legislation, but also—though here the steps of change are fewer and longer—in the realm of fundamental juristic concepts such as that of national sovereignty.

Type
Research Article
Copyright
Copyright © American Political Science Association 1931

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References

1 Law i. the Modern State (translated by F. and H. Laski).

2 Fundamental Concepts of Public Law, 103-104.

3 Law of the Constitution (8th ed.), 46.

4 Cf. McIlwain, The High Court of Parliament.

5 For a good, though brief, account of the history of the idea of national sovereignty, see the Introduction by Sabine, and Shepard, to Krabbe, , Modern. Idea of the State, pp. xvxxviiGoogle Scholar.

6 Introduction to Historical Jurisprudence, 84-85.

7 Historical Jurisprudence, 85.

8 It is pointed out in Carlyle's History of Medieval Political Theories that whatever there was of order in the medieval world was due to the idea of the supremacy of law.

9 The following cases are quoted in Willoughby, W. W., The Fundamental Concepts of Public Law, 286Google Scholar: The Charming Betsy, 2 Cr. 64; The Nereid, 9 Cr. 383 [“Till an act (of Congress) be passed the court is bound by the law of nations, which is a part of the law of the land”]; The Tottawana, 21 Wall. 558; The Queen v. Keyn (English case) Law Reports, 2 Exchequer Div. 68.2.

10 See Holland's essay on “International Law and Acts of Parliament,” in Studies in International Law, p. 176.

11 West Rand Central Gold Mining Company v. King (L. R. 1905, a KB 3 91).

12 World Peace Foundation Pamphlets, The British Commonwealth of Nations, Vol. x, no. 6, pp. 580581Google Scholar.

13 Cf. Léon Duguit, Law in the Modern State.

14 The following is a provision of the new German constitution: “The universally recognized rules of international law are accepted as integral and obligatory parts of the law of the German Reich.” Ch. I, sec. 1, art. 4.

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