A SOCIOLOGICAL I'VEIf OF SOVEREIGNTY 353
they have the direct power of creating constitutional law, exer- cise the sovereign power.' And the courts, whose work is mainly interpretative, do actually create law, and are to that extent sovereign. The people are not sovereign except where they directly enact the laws, as in the initiative and referendum. Popular election of officials is only an administrative and not a legislative act, and when once elected these officials arc them- selves sovereign in as far as sovereignty is distributed among them by the actually existing organization of government. -
The advantage of Willoughby's analysis of sovereignty is that it is based on what we have alreadv seen to be the psychic basis of coercion, the will, as seen in the expression of mere wish or preference. Sovereignty is thus separated psychologically from the strictly executive and judicial functions of government, where the psychic basis is knowledge and skill. But it is at the same time joined to the exercise of private coercion which we have already seen to be the psychic basis of private property. Whenever mere wish or opinion is imposed upon others and is carried into effect through coercive sanctions, there we have dominion. This dominion, when exercised by private persons, is private property ; when exercised by public officials, it is sovereignty. ,
CHAPTER \III.
SOVEREIGNTY ORDEK.
In the preceding paragrajjh we have seen that the common basis of public and private dominion is coercion. This conclu- sion is popularly rejected, because it is deeply felt that sovereignty is free from the characteristic quality of private dominion, caprice. Says Sir Henry Maine i^ "At first sight there could be no more perfect embodiment than Runjeet Singh of sovereignty, as con- ceived by Austin. He was absolutely despotic. He kept the most perfect order The smallest disobedience to his com- mands would have been followed by death or mutilation, and this was perfectly well known to the enormous majority of his sub- jects. But he never made a law. The rules which regulated the
■ P. 304. " Pp. 305, 307. ^ Early History of Institutions, p. 380.
