MacIver declares that conception of unlimited sovereignty is ‘dangerously false’. He rejects the concept of legal sovereignty as propounded by Austin. The monist concept of sovereignty derives it force from the formulation that sovereign is the source of all law and is omnipotent. Since sovereignty is characteristic of the state, it is also all-powerful. We have seen how MacIver refutes this by assigning limited purpose to the state. Further, while dealing with the monist’s doctrine of law as command of the sovereign, he shakes the very foundation of analytical and positive view of law. He challenges the singularity of source of law and the doctrine, ‘law is command of the sovereign. MacIver’s position on the source of law can be understood in the context of his support to the Sociological school of jurisprudence. For him, law does not originate from any person or designated authority in the State, it has source in social customs, traditions and conventions. And since it is grounded in society, which is prior to the State, law is prior to the State. Thus, law exists independent and prior to the State and is universal. Now, a pertinent question that arises here is: if law is independent, prior and universal then how is it connected with the State? Answer to this provides MacIver’s denial to the monist’s concept of sovereignty.
For MacIver, state gives expression to law, which means that the state is source of legal enactment and gives formal expression to a particular law instead of itself being the source of law. In his words, ‘the social law is expressed in custom, tradition, the thousand forms of use and wont. Part of this in turn is reinforced, reaffirmed, and enlarged as the law of the state.’58 Law reinforced, reaffirmed and enlarged means law presented in the form of statutes, codified and modified as required by the State. It is neither created nor remade by the State. MacIver echoes this when he says, drawing an analogy with human body, ‘the state can no more reconstitute at any time the law as a whole than a man can remake his body.’
Having refuted the notion that the sovereign or the State is the sole source of law, MacIver seeks to argue that law instead of being command of the sovereign is ‘very anti-thesis of command’. MacIver substantiates this by invoking the two arguments. In the first place, he says command separates the giver and the receiver—command issued from the sovereign to subjects/people. It is possible that the interest of the sovereign and the subjects/people may differ. On the other hand, law is not meant to separate but to unite. Law must be equally applicable to the legislator and the legislated upon. In this way, MacIver, suggests applicability of constitutional law to the State and general statutes to the people. Following from this is the second statement, which MacIver makes, ‘the state is both child and the parent of law.’ Thus, the State is subject to constitutional law and cannot claim arbitrary power in the name of sovereignty. In this sense, it is child of law. Since it enacts or as MacIver himself says, ‘reinforces, reaffirms or enlarges’ law, it is parent of it. However, it is not convincing as how the State will be ‘parent’ without being the creator of law. Also, why at all the State is required to be parent, if law has its own source and authority? This leaves a gap in his formulation of law as independent and beyond the state.
The question at this stage, that remains unanswered is: what makes society follow the legal enactment by the State? As we have seen, MacIver gives the state the role to regulate activities of some of the associations and also serve the common interest? For MacIver, the legal enactment by the State in the form of laws is not command or an expression of sovereignty but is made on behalf of the community. In this sense, enforceability of law is because it carries social approval and ‘will to obey’. The State becomes guardian of law and seeks compliance from the people based on its utility. In the present context, we generally see that the State does not pass laws that are anti-social or has no general consensus. This may be due to the fact that social groups and society at large have the means of interest articulation, i.e., expressing their voice through interest groups and public opinion and interest aggregation in the form of political parties.
The authority of the State is not based on its own sovereign power, but is derived form the authority of law. This has two aspects. Firstly, the State derives its authority from constitutional law, and secondly, laws it enacts carry their own acceptability and compulsion. Both ways, supremacy of law is established. Thus, the authority and power of the State is not based on sovereignty but derives its power, enforceability and legitimacy from law, which, in turn, derives its force and authority from society. In line with this, MacIver suggests, ‘to law, therefore, we must turn, and not to sovereignty as such, if we are to attain a true definition of the state.’59 This, we can say is a statement of a constitutional state.
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