Political Science and the Juristic Point of View

In the August, 1926, number of this journal, Professor W. W. Willoughby presented some conclusions regarding the conception of sovereignty and the range of its applicability in political science, together with some interesting suggestions for the clarification of political theory. His article is devoted primarily to an exposition and criticism of the juristic theories of Professor H. Krabbe, and the gist of his criticism is that Krabbe, in common with the translators of his Modern Theory of the State and with Duguit, fails to distinguish between ethical and legal validity. Krabbe's attack upon the conception of sovereignty is therefore due to a confusion: The legal supremacy which the analytical jurist attributes to the state for purely legal purposes is taken as including also an assertion of moral supremacy. Accordingly, the fact that a legally valid law may be criticized as opposed to moral sentiment or to public interest is turned into an objection against the view that the state, for juristic purposes, may be regarded as a legally sovereign will. Professor Willoughby implies that clarity can be introduced into the whole discussion simply by avoiding this confusion. The justice or utility of a law is a wholly proper question for the moralist, but it is quite irrelevant to the juristic problem, which concerns merely the legal competence of the agency enacting or enforcing the law. “We find in Krabbe, and also in his translators, …. that same mistaken idea which is to be discovered in Duguit, that an inquiry into the idealistic or utilitarian validity of law, as determined by its substantive provisions and purposes sought to be achieved by its enforcement, has a relevancy to, and that its conclusions can affect, the validity and usefulness of the purely formalistic concepts which the positive or analytic jurist employs.”