Abstract
Austin defined law as the commands of a sovereign. This paper investigates the relation between the concept of sovereignty and legal validity, departing from Austin’s jurisprudence by distinguishing between constitutive and constituted sovereignty. The aim of this paper is not to prescribe one particular understanding of law, sovereignty, or validity. Rather, it is to investigate what implications one particular understanding of sovereignty has for our understanding of law and validity. Accordingly, this paper posits that a focus on popular sovereignty, which is constitutive, does not cohere well with certain understandings of legal validity, namely validity from pedigree and validity from reason. The understanding of validity that fits best with a focus on popular sovereignty is from acceptance, and a further distinction can be made in this regard with acceptance of an institutional system of law and acceptance of individual rules.
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Notes
- 1.
- 2.
“Commands” here refers not only to rules which regulate conduct and have sanctions attached to them (what Hart would call “primary rules”), but also to rules which regulate the operation and creation of primary rules (what Hart would call “secondary rules”). This is, of course, a departure from Austin’s theory.
- 3.
The term recognized is used here to emphasise that the social attitude required of people is not a particularly demanding one, in that instantiations of the governing convention do not at all times need to be deliberate acts of instantiation. Individuals may do so unthinkingly.
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- 5.
Given that this paper will take validity as membership, the question as to what precisely it means for a norm to have binding force is outside the scope of this paper. The above explanation why the question of binding force is not of immediate concern to the inquiry of this paper shall have to suffice, here. It is worth pointing out, however, that this use of “binding force” as possibly implying a duty to obey the law differs from Hage’s technical definition of “binding force” in his contribution to this volume. Hage’s technical definition of “binding force” closely corresponds to my use of “legal validity.”
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Unless we take the postscript of The Concept of Law into account, in which case this point is very much debatable.
- 7.
Hage, in his contribution, distinguishes between source-validity and validity in the sense of a rule existing and generating legal consequences, the latter is what I call legal validity. The test of validity from pedigree makes source-validity the sole requirement of legal validity. Kirste, in his contribution, equates validity from pedigree as I define it here with legal validity in general, if one assumes that legally established criteria for the enactment of a norm refer exclusively to pedigree. This assumption, however, need not be the case: legally established criteria for the enactment of a norm could, in theory, involve criteria other than or in addition to pedigree.
- 8.
In line with the fact that opinions may differ on whether some of the items on the list are law, opinions may also differ on their relationship.
- 9.
Murphy makes the distinction between the strong claim of natural law, whereby a ‘law’ that is not backed by decisive reason is not a law at all, and the weak claim of natural law, whereby a ‘law’ that is not backed by decisive reason is either not a law at all, or a defective law. We will here take as representative the strong claim of natural law.
- 10.
Nota bene, however, that these standards will often include legal certainty as a substantive goal. As such, the substantive test whether a law is sufficiently grounded in reason can take into account other criteria besides the content of the law, such as concerns regarding the consequences of disobedience and the relevance of legal certainty. Cf. Finnis (2014).
- 11.
Alternatively: “if it were.” The correct grammatical structure of that sentence fundamentally depends on one’s stance on the matter it is meant to describe.
- 12.
This is very open-ended, however, and exclusive legal positivism would likely reject the principle(s) referenced as law and instead treat the reference as an invitation to the judge to exercise discretion and/or to employ non-legal standards in deciding the case before her.
- 13.
Prakke and Kortmann (2004, p. 603) and Kortmann (2008, pp. 301 ff.) describe the core of ministerial responsibility in the Netherlands as “an unwritten constitutional norm”; Elzinga and De Lange (2001, p. 188) discuss specifically whether ministerial accountability in the Netherlands is a matter of unwritten law or whether it is a constitutional convention in the sense of “constitutional morality” and as such not law, coming to the conclusion that the general consensus is as follows: customary constitutional law (ongeschreven staatsrecht als gewoonterecht) exists beside written constitutional law. Customary constitutional law is equal to written law, derives from its own source, may also derogate from written law, and requires custom/precedent as well as the prevalent view that it is law (algemene rechtsovertuiging).
- 14.
Possible examples of laws applied only exceptionally are those laws which grant far-reaching powers to the executive in states of emergency. However, it admittedly depends on state and circumstances how exceptional their use truly is. In Germany, the Emergency Acts (Notfallgesetze) have not been used since their introduction in 1968 (Focus 2008).
- 15.
Of course, actual empirical studies are necessary to back this claim, which is why it is here phrased in such a qualified manner.
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Waltermann, A. (2018). Sovereignty and Validity: On the Relation Between the Concepts and the Role of Acceptance. In: Westerman, P., Hage, J., Kirste, S., Mackor, A. (eds) Legal Validity and Soft Law. Law and Philosophy Library, vol 122. Springer, Cham. https://doi.org/10.1007/978-3-319-77522-7_11
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