Political theorists have spilt much ink in controversies over “sovereignty,” while probably even more effort has been devoted to discussion of the nature of law. It cannot be said that the result of all this activity has been to produce a body of generally accepted doctrine, or even that it has greatly clarified the field of discussion. On the contrary, misunderstandings and the abuse of terms have contributed greatly to a general fog.

The real issue raised by the pluralists is much more than a question of logic. They challenge the premises of their opponents. They deal largely with the question of the limits of political obligation. With that we are not here concerned. The primary purpose of this article is to search for a meaning of “law” that will at once contribute to the clarification of the question as to the nature of law and aid in the determination of the most helpful legal signification of the term “sovereignty.” The accomplishment of this purpose should aid in settling the incidental questions of the nature of “constitutional law,” the possibility of “nullifying” law, and the status of “international law.”

The two subjects—law and sovereignty—are frequently treated independently, but they are so inter-related as to render such treatment inadequate. A brief examination of the controversy over “sovereignty” will demonstrate how it ultimately resolves itself into a question of the definition of law.

Some Illustrations of Militant Democracy. Before a more systematic account of anti-fascist legislation in Europe is undertaken, recent developments in several countries may be reviewed as illustrating what militant democracy can achieve against subversive extremism when the will to survive is coupled with appropriate measures for combatting fascist techniques.

1. Finland: From the start, the Finnish Republic was particularly exposed to radicalism both from left and right. The newly established state was wholly devoid of previous experience in self-government, shaken by violent nationalism, bordered by bolshevik Russia, yet within the orbit of German imperialism; no other country seemed more predestined to go fascist. Yet Finland staved off fascism as well as bolshevism. At first, the political situation was not unlike that of the Weimar Republic in the years of disintegration. The Communist party, declared illegal by the High Tribunal as early as 1925, reconstituted itself and, in 1929, obtained a large representation in the Riksdag, thereby blocking any constitutional reform. Under the decidedly extra-constitutional pressure of the nationalist and semi-fascist movement of the Lapuans, the Communists were so intimidated that nationalists, and progressives (bourgeois liberals), against the opposition of the social Democrats, were able to carry the constitutional reforms which not only strengthened the position of the government but also eventually barred subversive parties—meaning, at that time, the Communists—from national and communal representation.

The invalidation and consequent abandonment of the N.I.R.A. did not bring to an end the trends of which it was, in fact, merely a manifestation rather than a cause. Section 7a had its precursors in the Railway Labor Act of 1926, the Norris Anti-Injunction Act of 1932, and similar state laws, and has been carried over in the National Labor Relations Act. The price maintenance provisions of the codes were the result of years of effort on the part of the American Fair Trade League to legalize resale price maintenance contracts. Today, various state Fair Trade Acts go much farther than the codes dared to go in establishing resale price maintenance even apart from privity of contract. Trade associations have continued their efforts to “rationalize” industry through the collection of statistics on capacity, production, sales, and prices, trusting that the courts will permit this to be done through a more liberal interpretation of the anti-trust laws. Pending further national legislation to be built upon the broader interpretation of the commerce power enunciated in the Labor Relations Act decisions, business efforts to set minimum prices have been carried on under a mantle of state and local legislation. Various trades and professions, desiring to carry forward their efforts to standardize minimum working conditions and professional practices in their fields, have also sought the aid of the states and of their local governments. Consequently, much of the work of the state courts during the year 1936–37 concerned the validity of these undertakings. There was also the normal run of cases in the various fields of state constitutional law. As last year (see this Review, Aug., 1936, pp. 692–712), the decisions will be discussed under the following headings: (1) separation and delegation of powers; (2) inter-governmental relations; (3) individual rights: procedural; (4) individual rights: substantive; and (5) fiscal powers. However, the nature of the material has necessitated a complete rearrangement of the subject-matter within each heading.

Much has been written on Congressional investigations. The theoretical questions connected with them have been explored. Their place in our governmental system has been reasonably well established.

Recent developments give a new perspective. The high point of Congressional investigations, so far as the previous literature was concerned, came in a time of stagnating major party politics. There was an attitude of “stand by” on the part of the Administration; defeatism pervaded the official minority. Conditions in the Senate, however, permitted the dissident Republicans, in combination with the Democrats, to constitute an intermittent majority for purposes of criticism if not of construction. When malfeasance and misfeasance were allowed to creep into administration, meeting little resistance from within, the check had to come from without, and it came in the form of Congressional investigations.

Of the various proposals embodied in the recently published Report of the President's Committee on Administrative Management, that calling for extension of the merit system has received most publicity. This publicity has been generally favorable, and, in the opinion of the present writer, undiscriminating. Everyone agrees that appointments to the public service should be based upon merit of some kind. The pertinent questions are: First, should the sort of merit represented by party service be given any consideration in the public service? Second, assuming that it should not, how is the sort of merit connoted by efficiency in doing the particular job assigned to be secured? Any proposal to extend the merit system which fails to tackle these questions unequivocally is hardly entitled to unqualified support.

As in previous lists, mention is here made only of units specifically authorized by law or established by the President by executive order under general authority vested in him.

Advisory Committee of the Coast Guard Academy. Created by Public No. 38, 75th Congress, approved April 16, 1937, to examine the course of instruction and to advise the Secretary of the Treasury in regard thereto. Committee will consist of five “persons of distinction in the field of education,” who shall be appointed by the Secretary of the Treasury and who shall serve without pay, but who shall be reimbursed for actual expenses of travel.

The summer school was first adapted for political purposes in Great Britain by the Fabian Society early in the present century. In the period before the World War, the only other political organization that sponsored summer schools—and in this case only intermittently—was the Independent Labor party. The Liberal party, beginning with the establishment of the Liberal Summer School in 1921, was the first major party to take up the idea. Neither the Fabian nor the Liberal summer school was founded as part of the official organization of the respective parent bodies; both, in their inception, were spontaneous movements initiated by enthusiastic members of the rank and file. The Fabian Summer School, however, soon became an integral part of the organization of the Fabian Society, while the Liberal Summer School has remained throughout its existence an auxiliary party organization.