ABSTRACT
Similarly, mediaeval theorists, so Dr Gierke tells us,1 were very fond of the notion of Rechtsstaat, which comprehends the state not as an end in itself but as existing merely in law and for law. The state, they thought, could find its justification only in its mission to realize the principle of justice ; and, consequently, as a legal instrument, its powers were legally limited. 2
This conception of legal supremacy over the state, as held by Aristotle and the mediaeval theorists, however, it must be noted, is based upon a very broad conception of law, more or less unfamiliar to certain modern jurists. For Aristotle law is not merely that which is decreed by the state, but the system of rational order co-extensive and identical with human reason. It is, in fact, the objective manifestation of moral rule in the social realm. Now since the state as actual political power is never near the level of perfection, it is obvious that the state should acknowledge its inferiority to the ideal of law. The mediaeval conception of law, also, is shot through with ethical as well as religious ideals. Aquinas's four-fold classification of law seems to be typical. It is by the con ception of " natural law ", which itself is a manifestation of "eternal law", that the mediaeval writers easily establish their argument for a " reign of law"; since, they point out, law was given to men prior to the institution of an earthly
and religious entanglements, that the theory of juristic sovereignty, as espoused by Bodin1, Hobbes2, Rousseau3, and Austin4, takes its development. Law, so the modern theory holds, is the command of a sovereign will which, as legal creator, must itself be supreme and absolute in authority. 5 This absolute character of sovereignty is theoretically imperative : since sovereignty has been assumed to be the ultimate source of legal authority, it cannot be legally limited without involving a logical infinite regress. 6 Moreover, in so far as the sovereign will is regarded as the ultimate source of law, it must also be regarded as its only source. For if the sovereign will itself is divisible into contending parts, it immediately loses the character of finality. The particular manner in which this sovereign will is manifested is a matter of little importance here. We may accept Bodin's view that "a prince may abrogate, modify, or replace a law made by himself and without the consent of his subjects" ;7 or Rousseau's that the general will is the real basis of political power ;8 or even the doctrine of constitutional checks and balances as we find it in the United States, which seeks to distribute actual political power between several con stitutional instruments ; but in any case we must acknow-
1 " Law depends upon the will of him who holds supreme authority in the state." De republica, i, ch. 8.
