In a system of direct democracy legal and political sovereigns practically coincide, because the people are directly concerned in making laws. Their expressed will is not a mere opinion, but a law itself. They also elect and remove their rulers, in indirect democracy representatives of the people make laws. They constitute the legal sovereign and the people who elect their representatives may roughly be called the political sovereign. Law ought to conform to the wishes of the electorate and the legislators must obey their mandate. If they do not, the electorate and the legislature are not in harmony with one another and disharmony between the two tends to create political friction.
Really, legal and political sovereign are not two separate entities. They are two aspects of the sovereignty of the State, though expressed through different channels. When there is friction between the two it is highly detrimental to good government. Law must be the manifestation of the will of the people and if the legal sovereign cannot accept the verdict of the political sovereign, the representatives of the people should be re-elected and the legislature reorganised and reconstituted so as to become the mirror of their opinion.
Laski has rightly said that “ individual is, ultimately, the supreme arbiter of his behaviour” and “ if the State is to be a moral entity, it must be built upon the organised acquiescence of the members.” The last word remains with the ultimate sovereign, the electorate. Indeed, in some democratic States there often seems to be, says Laski, “ a larger degree of obedience from the sovereign Parliament to its constituents than there is the other way round; a series of by-elections, for instance, produce with amazing rapidity a change in the will and temper of the sovereign.” The legal sovereign, therefore, cannot act against the will of the political sovereign.
If it does, a legal truth may become a political untruth. A legislature, which legislates in a manner contrary to the will of the people, will be replaced by one more faithful to the popular will. “ In other words, the political sovereign lies behind and conditions and, thus, limits the legal sovereign, though, legally speaking, the legal sovereign is omnipotent.” The distinction between the legal and political aspects is necessary and useful in that it reminds us that we are dealing with the power, not of an inanimate machine, but of human beings over their fellowmen. We know from History that, however absolute the legal right to exercise power may be, there is a limit in practice.
Human beings will stand just so much.
