Chapter 4: Sovereign and Subject

The chapter starts by characterizing Sovereignty as a person or body of persons whose orders the great majority of the society habitually obey and who does not habitually obey any other person or persons. The doctrine of sovereigntyasserts that in a every human society, be it a democracy or a monarchy, there is a simple relationship between subjects and the sovereign. There are two important points in this doctrine, namely the idea of a habitand the other is the position occupied by the sovereign above the law. Habittalks about whether such habit of obedience for the law is sufficient to account for two features (continuityof the authority and persistenceof laws). On the other hand, the positionof the sovereign talks about whether this illimitable status of the supreme lawgiver is necessary for the actual existence of law.

Part 1 (The Habit of Obedience and the Continuity of Law): In the previous chapters, we uncovered that the word obediencesuggests deference to authority and not merely compliance with orders backed by threads. Even so, there can be no way to know precisely the connection between the giving of the order and the actual performance of the act (i.e. Would the person have done it anyway even though there was no order?). Such is the case of law, where some laws prohibit things that would not have been done by the people anyway. In any case, Hart presented a simple case where the words habit and obedienceconceded to have a fairly obvious application: A monarch ruled by Rexwhere he requires people to do what they’re would not have done on their own, and to refrain from doing what they would have done in their own volition.

   In the previously mentioned case, it cannot be said to embrace the true nature of a habitsince the people are essentially being forced to do away with what they really are inclined to do. This is not in the same way people may eventually make it a habit to drive on the left side of the road (in English countries), since in this instant case, there is no strong inclination that is being challenged by the law. Nonetheless, though the obedience accorded to Rex will often lack this element of habit, it will have other important ones. It is to be noted that the social situation in this scenario is a personal relationship between each subject and Rex. There is also the concept of a population as having “such habit” when different people’s habits converge or the same. In this scenario, all that is required from the community to constitute Rexas the sovereign are the personal acts of obedience on the part of the population; there are no one going against what has been imposed.  This unity is constituted by the fact that its members obey the same person, even though they may have no views as to the rightness of doing so.

Supposing Rex dies and leaves Rex IIto rule, there is no assurance that the same habits will be exercised by the sovereign towards the new sovereign. There is no established habit of obedience to Rex II, and we’ll have to wait if the same will be accorded to him. Non-continuity is evident during troubled times, and is not really favored, as this may give rise to conflicts. This is why preparations are made in advance such as the stipulation of the qualifications of the next ruler, as to whom the titleof the ruler will be given. It is believed that this will ease the way on the transition from one lawgiver to another. In explaining this continuity, it is natural to use expressions such as rule of succession, title, right to succeed, and right to make law. These concepts introduce new elements of which no account can be given in terms of habits of obedience to general orders. In the initial example, the world had no rules, and so no rights or titles to that effect. All it had were facts that orders were given by Rex I, and his orders were habitually obeyed. This does not contain rules on his successors. In fact, the idea of habitual obedience fails in two different though related ways to account for the continuity to be observed in every normal legal system. First, mere habits of obedience given by one legislator cannot confer on the new legislator any right to succeed and give orders in his place. Secondly, habitual obedience to the old lawgiver cannot by itself render probable that the new legislator’s orders will be obeyed. If these two are present, then there must have been a more complexsocial practice being exercised in the society.

What then is this more complex practice? To answer this, we must inquire about the difference between a habit and a rule. Similarly, both habit and rules must be general though not necessarily invariable; this means that it is repeated when the occasion arises by most of the group: so much is, implied in the phrase, “They do it as a rule.” But thought there is this similarity, there are three salient differences:

1. For the group to have a habit, it is enough that their behaviour converges: Such general convergence of actions need not necessarily constitute the existence of a rule requiring that behaviour. When there is such rule, deviations are generally regarded faults open to criticism.
2. Where there are such rules, deviation from the standard is generally accepted as a good reasonfor making it:If rules are present, such criticism or demand is regarded as legitimate or justified. Rules are then broken by a minority who refuses to loop upon it as a standard either for themselves or others.
3. The internal aspect of rules: In order that there should be such habit, no members of the group need in any way think of the general behaviour; it is enough that each for his part behaves in the way that others also in fact do. On the other hand, if there exists a rule, the behaviour is to be regarded as a general standard to be followed by the group as a whole. A rule has an internal aspect, in addition to the external aspect which is present in both habits and rules. This internal aspectis seen in the rules of any game, such as Chess. Rules dictate how each of the pieces move; the movements of the pieces are not dictated by mere habitsof players.The movements then are opened to criticism such as “I ought not to have moved the Queen like that” or “I must have done that differently.” The internalaspect of rules is often misrepresented as a mere matter of feelingsin contrast to externally observable physical behaviour. What is necessary is that there should be a critical reflective attitude to certain patterns of behaviour as a common standard, and that this should display itself in criticism, demandsfor conformity, and in acknowledgementsthat such criticism is justified.

Applying these differences to the initial scenario, it is seen that  Rex will not only in fact specify what is to be done, but will also have the right to do this; and not only will there be general obedience to his orders, but it will be generally accepted that it is right to actually obey him. Rex then is a legislatorwith the authorityto legislate. Rex’s word will now be a standard of behaviour so that deviations from the behaviour will be open to criticism.

On the other hand, acceptance of a rule by a society at one moment does not guaranteeits continued existence. There may be a revolution, where the society may cease to accept the rule. This may happen in the lifetime of Rex I, or at the point off transition to a new one, Rex II. The statement that a new legislator has a right to legislate, presupposes the existence of the rule under which he has the right. Without it, the transition of the power cannot be said to be made in favor of the new ruler. This scenario of transferring power from Rex Ito Rex IIis perhaps enough to show that the continuity of legislative authority depends on that form of social practice which constitutes the acceptance of a rule, and differs, in the ways we have indicated, from the simpler facts of mere habitual obedience.

It can be easily conceded that habits of obedience are not enough to account for the right of a successor to succeed and for the consequent continuity in legislative power. First, because haves are not normative. Second,because habits of obedience to one individual cannot refer to a class of future successive legislators. So the fact that there is habitual obedience to one legislator neither affords grounds for the statement that his successor has the right to make law. 

Hart ended this part of the chapter by saying that the scenario in the illustrated simple society may not be the case in a modern state as it would be absurd to think of the mass of the population, however law-abiding, as having any clear realization of the rules specifying the qualifications of a continually changing body of persons entitled to legislate. In what sense then are we to think of the continuity of the legislative authorityof the Queen in a Parliament as resting on some fundamental rules that are generally accepted?  Acceptance can be seen to be divided between officialand ordinarycitizens. Officials generally accept the rules when they make the laws in accordance with the rules that empower them. On the other hand, ordinary citizens accept the rules by their acquiescence in the results of these official operations, but he may know little of its origins or its makers; some may know nothing more about the law, except of the fact that it isthe law.

It is the strength of the doctrine which insists that habitual obedience to orders backed by threats is the foundation of a legal system that it forces us to think in realistic terms of this relatively passive aspect of the complex phenomenon (existence of a legal system). However, its weakness lies in the fact that it obscures the other relatively active aspect in the law-making, law-identifying, and law-applyingoperations of the officials or experts of the system.

Part 2 (The Persistence of the Law): This part of the chapter is dedicated to understanding the nature of law with regards to its persistence or its continued presence after its enactment, such as the Witchcraft Act (1735), whose implementation may actually still persist until today. Here, the main question being asked is : how can law made by an earlier legislator, long dead, still be law for a society that cannot be said habitually to obey him? It was conceded that laws should not be tied to the lifetime of their makers. The answer to the question Why law stillis in principle the same as the answer to the first question Why law already. In the sample presented in the previous part, succession of the legislators does not mean the abandonment of the laws that were made by the previous ones (i.e. even though Rex II is already ruling, the laws made by Rex Istill subsists). This is because the legislative power rests upon the foundation of a general rule which successive generations of the society continue to respect regarding each legislator whenever he lived. Given the present acceptance of the general rule, the persistence of laws is no more mysterious than the fact that the fact that the decision of the umpire in a previous round of a game persists even though he was changed in succeeding rounds. Nonetheless, the idea of a rule conferring authority in orders, both past and present, is certainly more complex than the idea of habits of obedience to a present legislator. Is it possible then to dispense with this complexity? Hobbesmade an attempt to do this by saying that the legislator is he, not by whose authority the laws were first made, but by whose authority they now continue to be laws. It is then argued that the reason why the laws persist is because the currentsovereign recognizes it as such, even thought it is recognized tacitlyrather than explicitly. This theory, though, is challenged due to its incoherence when the Courts now distinguish between an unrepealed Victorian statute, and one which was repealed under Edward VII as no longer law.

Hart then introduces the concept of Legal Realism, where it holds that no statute is to be considered law until it is actually applied by a court. There is a difference between the truth that if a statute is to be law, the courts must accept the rule that certain legislative operations make law, and the misleading theory that nothing is law till it is applied in a particular case by a court. Some adopt the idea that the persistence of laws which doesn’t fully recognize the full Realist theory and acknowledges that statutes of the present sovereign are law before they’re applied by the courts has the worst of both worlds. This half-way position is untenable because there us nothing to distinguish the legal status of a statue of the present sovereign and an unrepealed statute of an earlier one. 

Part 3 (Legal Limitations on Legislative Power): Since the sovereign makes law for his subjects and makes it from a position outside any law, there are no legal limits on his law-creating power. It is important to understand that the legally unlimited power of the sovereign is his by definition: the theory simply asserts that there could only be legal limits on legislative power if the legislator were under the orders of another legislator whom he habitually obeyed. All legal systems have a sovereign with these attributes; the mere existence of laws implies the existence of such sovereign. There may be other forms of limits (such as threat of revolutionfrom his subjects), but these are not actual legal limits to a sovereign’s power. This theory then satisfies in simple form an answer to two major questions. First, we can identify in his general orders the law of a given society and distinguish it from many other rules, principles, or standards, moral or merely customary, by which the lives of its members are also governed. Secondly, within the area of law we can determine whether we are confronted with an independent legal system or merely a subordinate part of some wider systems.

It is believed that a Queen of a parliamentary squarely fits this description, and the sovereignty of Parliament consists in the fact that it does so. This is also evident in the scenario of Rex, whose orders are considered to be generally accepted bu courts, officials, and citizens, that whenever they are made, his word constitutes a standard of behaviour for the group. The objection to this theory is that the existence of a sovereign such as Rexin this imagined society is not a necessary condition or presupposition of the existence of law. A written Constitutionmay restrict the competence of the legislature not merely by specifying the form and manner of legislation but by excluding altogether certain matters from the scope of its legislative competence. Unlike disregard of popular opinion (such as the case of threats of revolution), disregard of these specific restrictions would render his legislation void. 

Constitutions, that which restricts the legislative powers of the supreme legislature, imposes not legal duties but legal disabilities. Limitshere implies not the presence of dutybut the absence of legal power. In the case of Rex, he may issue orders which are consistent with the constitution, yet if he does so, he will not have disobeyed anyone, nor have not broken any superior legislators’ law, but he will surely have failed to make a valid law. The mentioned considerations establish a number of points much obscured by the simple doctrine of sovereignty yet vital for the understanding of the foundation of a legal system.

1. Legal limitations on legislative authority consist not of duties imposed on the legislator to obey some superior legislator but of disabilities contained in rules which qualify them to legislate
2. In order to establish that an enactment is law, it should be shown that it was made by a legislator who was qualified to legislate under an existing rule, and not on whether his authority to legislate us legally unrestricted
3. In order to show that there is an independent legal system, it is needed to be shown that the rules which qualify the legislator do not confer superior authority on those who have also authority over other territory.
4. There should be a distinguishment between a legally unlimited legislative authority and one which, though limited, is supreme in the system.
5. The only relevance of the fact that the legislator does habitually obey someone else is that this is some evidence that under the rules, his authority to legislate is subordinate to that of others.

Part 4 (The Sovereign Behind the Legislature): This section of the chapter started by saying that many legal systems in which the supreme legislatureis subject to legal limitations on the exercise of its legislative powers. There is mention as well of the qualifications prescribed for the position of the legislature, but these qualifications should not be considered as the limitations  on the scope of its legislative power. Some examples of substantive limitations are to be found in federal constitutions such as those of different countries (e.g. United States, Australia), where the division of powers between the central government and the member states cannot be changed by the ordinary processes of legislation. An example is the Fifth Amendmentof the US constitution, which provides that no person shall be deprived of life, liberty, or property without due process of law.

Where legal limitations on the normal operations of the supreme legislature are imposed by a constitution, these actually may or may not be immune from certain forms of legal change, depending on the nature of the provision made by the constitution for its amendment. Some constitutions don’t provide for provisions for amendments, or if there exists one, the imposition of limits on the legislature are kept outside its scope. In considering the claim of the theory to account consistently for these cases, it must be recalled that Austinhimself in elaborating the theory did notidentify the sovereign with the legislature even in England (it may be recalled that the Queenis a good example of a truly sovereign power). Nonetheless, Austin’s view is that the electors are the ones who actually constitute or form part of the sovereign body. 

Viewed in this perspective, the difference between a legal system in which the ordinary legislature is free from legal limitations, and one where the legislature is subject to them, appears merely as a difference between the manner in which the sovereign electorate chooses to exercise its sovereign powers. In democratic systems, the electorate may be considered an extraordinaryand ulterior legislaturesuperior to the ordinary legislature which is legally boundto observe the constitutional restrictions and the courts will declare the Acts of the ordinary legislature invalid. Where such provision was made, the continuity of legislative authority could not be expressed in the simple terms of habits of obedience, but required for its expression the notion of an accepted rule under which the successor had the right to legislate before actually doing so and receiving obedience. The simple scheme then of habits of obedience and person or personscannot suffice to cover the areas of a much more sophisticated system.

This can be shown in a scenario where the electorate excludes only infants and mental defective and so, in effect, constitutes themselves as the bulkof the population who in return also habitually obeythemselves.Thus, there is then a blur between the persona of the legislature and those who obey the legislated laws. Surely, in this scenario, there is neither ordersin the original sense or obedience. To rationalize this conflict, a distinction may be made between a person acting in their private capacity, and the same person acting in their official capacityas electors or legislators. Only rules then can determine the extent of what the official capacityof a person constitutes. It is only by reference to these rules that we can identify something as an election or a law made by this body of persons. What then is it for such rules to exist? Can we say that these rules are just parts of the description of the population’s habits of obedience?

If there is only one ruler (such as the simple case ofRex), it is easy to see that the people habitually obey him when he gives orders in ways prescribed by the rules (e.g. written, oral, etc.). But, where the sovereign person is not identifiable independently of the rules, we cannot represent the rules in this way as merely the terms and conditions under which the society habitually obeys the sovereign; the rules are constitutiveof the sovereign, not merely things which is mentioned in a description of the habits of obedience to the sovereign. At most, we can say that the rules set forth the conditions under which the elected personsare habitually obeyed: but this would take us back to the theory where the legislature, not the electorate is sovereign! These arguments are made to show that the simple idea of orders, habits, and obedience, cannot be adequate for the analysis of law. What is required instead is the notion of a rule conferring powers on persons qualified in certain ways to legislate by complying with a certain procedure. 

Aside from the general conceptual inadequacy of the theory, there are many ancillary objections to this attempt as well. If the sovereign is vested on the electorate, we may as well ask if it is true that these restrictions are legal because the electorate has given orders which the ordinary legislature habitually obeys. Can we suppose that these restrictions are duties which the electorate has even tacitly ordered the legislature to fulfil? All the objections then made in earlier chapters to the idea of tacit orders apply with even greater force to its use here. Failure to exercise power as complex in its manner of exercise as that in the US constitution, may be a poor sign of the wishes of the electorate, though often reliable sign of its ignorance and indifference. Are we then to say here that the society as a whole is sovereign and these legal limitations have been tacitlyordered by it? That this would make the distinction between revolution and legislationuntenable is perhaps a sufficient reason for rejecting this theory. Lastly, this theory that the electorate is the sovereign only provides at the best for a limited legislature in a democracy where an actual electorate exists. How then can this be exercised in other forms of government, such as a monarchy (e.g. the kingdom where Rexis the ruler).