Sovereignty Notes

9. Sovereignty

HLA Hart, Concept of Law, 2nd ed. (OUP, 1994), chap. IV: ‘Sovereign and Subject’ [Google books; Keble]

Sovereign is office that

1. has authority by virtue of generally accepted (constitutional) rule (>habit of being obeyed) and

2. has no legal limit (cf legal disability, factual limit) on authority (>does not obey any other body)

In modern parliamentary context, rejects Austin’s view that electorate is sovereign

Sovereign = entity whose orders society habitually obeys & who does not obey any other entity

• Critical unifying concept of a society governed by law

• Two aspects of sovereignty

  • Habit of obedience (of subject) – accounts for continuity of obedience & persistence of laws after sovereign & subjects have passed

  • Superior position of sovereign – query significance

1. Habit of obedience

• Obedience

  • Causation issue – most laws prohibit conduct that people would not engage in in any event – is an actor obedient to sovereign if complying with orders of own free will?

  • Definition of obedience – suggests deference to authority as well as compliance with coercive orders

• Habit –

  • Unreflective, effortless & engrained – where no real incentive to disobey – eg driving on a certain side of the road

  • Mere pattern of regular behaviour – even if not natural or attractive – eg annual payment of taxes

  • Collective habits – behaviour of population converging on same unreflective & effortless / regular pattern of behaviour

Continuity – obedience to office rather than to person

• Historical examples of obedience to king but not to son

• Supervening rules required – eg succession to throne or governing election of successive parliaments – before orders can be regarded as legitimate law

  • EG son of king issues first order; dies immediately – is the order law even before it is obeyed?

• Habit of obedience insufficient to guarantee continuity

  • Cannot give successor legislator any particular right

  • Cannot render probable habitual obedience by subjects to successor

• Social/legal rules (<> habits)

  • Deviation attracts criticism & threatened pressure to conform

  • Prevailing standard viewed (by most compliant and non-compliant actors) as justifying that criticism

  • ‘Internal’ aspect of rules – generality of behaviour is concerted rather than coincidental

    • Rules (<>habits) have normative aspect – perceived obligation to act in a certain way, either because

      • it is inherently good (eg not stealing) or

      • convergence of behaviour is good (eg moving chess pieces in a certain way, driving on left) or

      • a combination of the two (eg paying taxes) or

      • viewed in one way by some and in the other by others (eg taking off hat in church)

    • Normative ‘internal’ aspect of rules gives added force to sovereign power = acceptance of rules as well as authority to make rules = gives legitimacy

    • Legitimacy of sovereign power in turn permits the existence of rules governing succession

• In complex democratic society

  • Cannot speak of citizens ‘accepting’ supervening rules of succession in the same way – they most likely don’t know of or understand them

  • Officials (legislative, judicial, executive) know & accept rules – citizens accept official capacity

Persistence of Law

• Inverse of continuity problem –

  • Inherited authority of sovereign office <> Lasting authority of sovereign’s law

  • Successor to office already has authority before obeyed <> Predecessor to office still has authority after reign finished

  • Why law already? <> Why law still?

• Rests on same justification – supervening rules of succession create sovereignty in office rather than in person – rules created by person in office endure

• CF Hobbes (and Bentham and Austin) justifies based on obedience to sovereign legislator alone

  • Justification – current sovereign’s (tacit) authority is basis for obedience to previous sovereign’s rule

    • NB without supervening rule, ‘authority’ has no meaningful content – simply equates to ‘power’

  • BUT potentially has the consequence that an old statute is not ‘law’ until enforced by the current administration?

    • Depends on scope of ‘tacit’ – and makes little sense to talk of courts (composed of tenured members enduring past particular sovereign parliament) in this way

  • Also theory suggests that repeal of a law by a previous sovereign doesn’t prevent current sovereign from enforcing it? – tends towards Legal Realism (no statute is law until enforced by Court)

2. Freedom of Sovereign from obedience (no legal limits)

• IE if was obedient to another legislator, would not be sovereign

• Theory goes that every society with law has sovereign of this nature

• Not completely true since Magna Carta

Limits to legislative power

• No legal limits

  • Factual<>legal limit on power (eg by public opinion, due to moral conviction or fear of revolt)

  • Manner & form limits – but self-imposed & do not limit substantive powers as no obstruction (in law) to compliance

• Legal limits – eg proscription of deprivation of liberty without trial

  • “Cannot” in impossibility rather than normative sense – law passed contrary to constitutional norm is no law at all <> should not pass such laws which will not be enforced if he does – legal disability <> legal duty

  • Therefore constitutional limits do not impose ‘duty’ of obedience on sovereign – simply limits capabilities

  • Rather, equate to disabilities contained in rules qualifying sovereign to legislate (same rules that give authority to successor, etc)

• IE more accurate to say that no entity has superior authority over sovereign

  • May be limits (factual, manner & form, legal) on power

    • BUT ignores the fact that limits on power are subject to interpretation by courts? Legal ‘disability’ is a simplistic characterisation

  • May habitually obey someone’s laws, but not required to do so

  • – mirrors ‘authority’ of rule preferred to ‘habitual obedience’ above

Modern parliamentary context

• Sovereignty can be traced to body with...

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