Skip to main content
SpringerLink
Log in

A Positivist Foundation of the Legal System: Popular Sovereignty as a Social Convention or Social Rule

  • Chapter
  • First Online:
Conceptual Jurisprudence

Part of the book series: Law and Philosophy Library ((LAPS,volume 137))

  • 453 Accesses

Abstract

A recurring question in legal theory regards the basis of the legal system. One possible answer is that it emanates from the people, as captured in the concept of popular sovereignty. This concept plays a role in many contexts ranging from political philosophy to constitutional law. However, it is not always clear what popular sovereignty means and how state power can be said to emanate from the people. This paper seeks to remedy this. In order to do so, it sketches a conception of popular sovereignty that explains how and in what way state power emanates from the people. This conception, following Hampton’s account of political authority, bases state power on a social convention. However, an investigation into the nature of social conventions, drawing insights from legal theory and philosophy more generally, reveals that this conceptualisation is not accurate. Legal theory provides an alternative in the form of social rules, and this paper ultimately argues for a conception of popular sovereignty as the power of the people to constitute and maintain state power via the acceptance of and compliance with a social rule to this effect. This paper pursues two aims: firstly, it aims to develop a positivist and explanatory conception of popular sovereignty, which operationalises the concept for political scientists, constitutional (and European Union) lawyers, legal positivists and (legal) sociologists, linking political philosophy with legal theory. Secondly, it aims to investigate potential issues surrounding the use of social conventions in legal positivism, and to propose social rules as an alternative for some cases.

This is a preview of subscription content, log in via an institution to check access.

Access this chapter

Log in via an institution
Chapter
USD 29.95
Price excludes VAT (USA)
  • Available as PDF
  • Read on any device
  • Instant download
  • Own it forever
eBook
USD 139.00
Price excludes VAT (USA)
  • Available as EPUB and PDF
  • Read on any device
  • Instant download
  • Own it forever
Softcover Book
USD 179.99
Price excludes VAT (USA)
  • Compact, lightweight edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info
Hardcover Book
USD 179.99
Price excludes VAT (USA)
  • Durable hardcover edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info

Tax calculation will be finalised at checkout

Purchases are for personal use only

Institutional subscriptions

Notes

  1. 1.

    Such as Della Sala (2012).

  2. 2.

    I use the term ‘positivist’ to distinguish it from conceptions of popular sovereignty that justify a legal system, rather than explain its existence, but also—and perhaps predominantly—to indicate that this conception of popular sovereignty finds its basis in social fact. I would like to thank the anonymous reviewer who invited critical reflection on the label.

  3. 3.

    For a more extensive exegesis of this conception, see Waltermann (2019).

  4. 4.

    Waltermann (2019).

  5. 5.

    Geenens (2016), p. 35.

  6. 6.

    Cf. German Basic Law, Article 20(2).

  7. 7.

    Consider, by way of example: Kalyvas (2005), Sen (2011), Winterton (1998).

  8. 8.

    Hampton (1997).

  9. 9.

    Hampton (1997), p. 4.

  10. 10.

    Raphael (1976), pp. 61–65.

  11. 11.

    Raphael (1976), p. 61.

  12. 12.

    Hampton (1997), p. 63.

  13. 13.

    Hampton (1997), p. 64.

  14. 14.

    Hampton (1997), pp. 64 f.

    One might object that this question only touches those social contract theories that rely on actual consent, but not hypothetical contracts such as the social contract in Rawls’ theory of Justice as Fairness (Rawls (1976)). Hampton anticipates this objection and points out that “if it turns out that throughout history states have been created in ways that have not involved subjects’ consent and people have taken themselves to be subject to political authority for reasons other than that they have consented to such authority, then the consent that the contract argument requires in order to explain and legitimate that authority has simply not occurred […].” Hampton (1997), p. 64 (emphasis added) and further “Hence whatever excellent use a hypothetical contract has in helping to illuminate the nature of justice […], a contract that was never really made cannot explain real authority.” Hampton (1997), pp. 65 f.

  15. 15.

    Hampton (1997), pp. 84 f.

  16. 16.

    Hampton (1997), pp. 78–86.

  17. 17.

    Hampton (1997), p. 90.

  18. 18.

    Hampton (1997), pp. 74 f.

  19. 19.

    The term “pre-emptive and final” is based on Joseph Raz’s theory of reasons. He defines pre-emptive reasons as follows: “The fact that an authority requires performance of an action is a reason for its performance which is not to be added to all other relevant reasons when assessing what to do, but should exclude and take the place of some of them.” Raz (1986), p. 46 This makes legal rules (norms generated by a political authority) into second-order reasons, meaning reasons that impact first-order reasons, in this case by excluding them. This is why pre-emptive reasons are often called exclusionary as well.

  20. 20.

    Hampton (1997), p. 97 f.

  21. 21.

    Postema (2011), p. 343.

  22. 22.

    For an elaboration of the fit between the positivist conception of popular sovereignty I put forward in this paper and the Austinian sovereign situated in an institutional system of law, accounting for Hart’s criticism of Austin’s work, see Waltermann (2018).

  23. 23.

    See for example Kalyvas (2005) and Kumm (2016).

  24. 24.

    Hart characterises the ultimate rule of recognition as a convention in the Postscript, calling it a social rule before. Given the parallels between Hampton’s governing convention and the conditions for it and the conditions for the ultimate rule of recognition in Hart’s theory, however, I will begin by characterising both as conventional and test whether this is indeed the best characterisation.

  25. 25.

    Hart (2012).

  26. 26.

    Hart (2012), p. 94.

  27. 27.

    Dickson emphasises this point, cf. Dickson (2007), p. 375.

  28. 28.

    Hart (2012), p. 107.

  29. 29.

    Hart (2012), p. 255.

  30. 30.

    Hart (2012), p. 103.

  31. 31.

    Marmor (2001), p. 195.

  32. 32.

    This is an only somewhat updated version of an example not of my own making. Cf. Marmor (2001), p. 204; Rescorla (2015), para 3.2. This is not a perfect example of what Lewis had in mind when he wrote about coordination problems, in that someone might have a preference who calls back, especially in a variation of this scenario in which the caller pays. Such a preference makes this an ‘imperfect’ coordination problem.

  33. 33.

    Lewis (2002), p. 78.

  34. 34.

    Marmor (2001), pp. 201 f.

  35. 35.

    Postema (2011), p. 494.

  36. 36.

    Marmor (2001), pp. 205 f.

  37. 37.

    Section 2. See again Hampton (1997), p. 74 f.

  38. 38.

    Postema (2011), p. 489.

  39. 39.

    Marmor (2009), p. 2.

  40. 40.

    Marmor (2009), p. 36.

  41. 41.

    Marmor (2009), p. 45.

  42. 42.

    Marmor (2001).

  43. 43.

    Marmor (2001), p. 201.

  44. 44.

    Marmor (2001), p. 203.

  45. 45.

    Marmor (2009), p. 9.

  46. 46.

    Marmor (2009), p. 11.

  47. 47.

    Marmor (2009), pp. 166 f.

  48. 48.

    Dickson (2007), p. 382.

  49. 49.

    Postema (2011), pp. 529 f.

  50. 50.

    This is not meant to be a complete and exhaustive definition of conventions so much as a number of deliberately broadly conceived conditions that are necessary, but not necessarily jointly sufficient for the existence of a convention. This explains also the lack of condition or argument regarding the question if conventions must be the solution to a recurring coordination problem.

  51. 51.

    She defines mastery as follows: “to be mastered is to be subject to the use of coercion in a way that disables one from participating in the process of creating or changing a governing convention.” Hampton (1997), p. 90.

  52. 52.

    Hampton (1997), p. 92.

  53. 53.

    Hampton (1997), pp. 74 f, but see also Raphael (1976), p. 46 and of course Hobbes (2013).

  54. 54.

    Raphael (1976), p. 55.

  55. 55.

    Consider, again Hobbes (2013).

  56. 56.

    Note that while specific legal rules (help) solve coordination problems, this does not mean that the legal system as a whole is necessarily the solution to a recurring coordination problem. I have argued this point in Sect. 3.2.1. above.

  57. 57.

    Hart here refers to Austin (1869). Nevertheless, habitual obedience is one element of how I have defined “treating the legal system as authoritative”. Accordingly, Hart’s view of this matter is acutely relevant to the current investigation into the nature of a positivist conception of popular sovereignty.

  58. 58.

    Hart (2012), pp. 55 f.

  59. 59.

    Hart (2012), pp. 56–57.

  60. 60.

    Hart (2012), p. 58.

  61. 61.

    Searle (1995).

  62. 62.

    Searle (2010), Searle (1995).

  63. 63.

    For a thorough discussion of social facts and social rules as well as their relationship to each other and to other kinds of facts and rules, see Hage (2018a), sections III and IV in particular.

  64. 64.

    Hage (2018b), pp. 116 f.

  65. 65.

    Hage (2018b), p. 117. It is interesting to note that this transition from brute social fact to social rule corresponds to Hart’s criticism of Austin, wherein Austin’s habitually obeyed sovereign is sovereign as a matter of brute fact, while Hart’s description of a possible transition of authority from Rex I to Rex II is on the basis of a social rule, much as Hage here describes. This shows that social rules concerning which or whose norms to treat as authoritative can play in groups as small as the mountain climbers or as large as a whole kingdom. Cf. Hart (2012), pp. 55 ff.

  66. 66.

    Hage (2018b), p. 117.

  67. 67.

    Hage (2018b), p. 118.

  68. 68.

    Hobbes (2013).

References

  • Austin J (1869) The province of Jurisprudence determined. John Murray

    Google Scholar 

  • Della Sala V (2012) Europe’s Autumn: popular sovereignty and economic crisis in the European Union beyond the Arab Spring: a new era of popular sovereignty and protest. Whitehead J Dipl Int Relat 13:35–44

    Google Scholar 

  • Dickson J (2007) Is the rule of recognition really a conventional rule? Oxford J Legal Stud 27(3):373–402

    Article  Google Scholar 

  • Geenens R (2016) E pluribus unum? The manifold meanings of sovereignty. Neth J Legal Philosphy 45(2):15–36

    Article  Google Scholar 

  • Hage J (2018a) Foundations and building blocks of law. Eleven International Publishing

    Google Scholar 

  • Hage J (2018b) Of norms. In: Bongiovanni G, Postema GJ, Rotolo A, Sartor G, Valentini C, Walton D (eds) Handbook of legal reasoning and argumentation. Springer

    Google Scholar 

  • Hampton J (1997) Political philosophy. Dimensions of philosophy series. Westview Press

    Google Scholar 

  • Hart HLA (2012) The concept of law, 3rd edn. Clarendon Press

    Google Scholar 

  • Hobbes T (2013) Leviathan. In: White E, Widger D (eds) Andrew Crooke, at the Green Dragon, St. Paul’s Churchyard. https://www.gutenberg.org/files/3207/3207-h/3207-h.htm

  • Kalyvas A (2005) Popular sovereignty, democracy, and the constituent power. Constellations 12(2):223–244

    Article  Google Scholar 

  • Kumm M (2016) Constituent power, cosmopolitan constitutionalism, and post-positivist law. Int J Const Law 14(3):697–711

    Google Scholar 

  • Lewis D (2002) Convention: a philosophical study. Blackwell Publishers

    Book  Google Scholar 

  • Marmor A (2001) Legal conventionalism. In: Coleman J (ed) Hart’s postscript. Oxford University Press

    Google Scholar 

  • Marmor A (2009) Social conventions: from language to law. Princeton Monographs in Philosophy. Princeton University Press, Princeton

    Google Scholar 

  • Postema GJ (2011) A treatise of legal philosophy and general Jurisprudence. Volume 11: legal philosophy in the twentieth century: the common law world. Springer

    Google Scholar 

  • Raphael DD (1976) Problems of political philosophy. Revised Edition edn. Macmillan Press Ltd, London

    Google Scholar 

  • Rawls J (1976) A theory of Justice. Oxford University Press

    Google Scholar 

  • Raz J (1986) The morality of freedom. Clarendon Press

    Google Scholar 

  • Rescorla M (2015) Convention. Stanford Encyclopedia of Philosophy, Summer 2015 edn. https://plato.stanford.edu/archives/sum2015/entries/convention

  • Searle JR (1995) The construction of social reality. The Free Press, New York

    Google Scholar 

  • Searle JR (2010) Making the social world. Oxford University Press, Oxford

    Book  Google Scholar 

  • Sen S (2011) The constitution of India: popular sovereignty and democratic transformations. Oxford University Press, Delhi. https://doi.org/10.1093/acprof:oso/9780198071600.001.0001

  • 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-R (eds) Legal validity and soft law. Springer

    Google Scholar 

  • Waltermann A (2019) Reconstructing sovereignty. Law and philosophy library. Springer

    Google Scholar 

  • Winterton G (1998) Popular sovereignty and constitutional continuity. Fed Law Rev 26:1–14

    Article  Google Scholar 

Download references

Author information

Authors and Affiliations

  1. Faculty of Law, Maastricht University, Maastricht, The Netherlands

    Antonia M. Waltermann

Authors
  1. Antonia M. Waltermann
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Antonia M. Waltermann .

Editor information

Editors and Affiliations

  1. Faculty of Law, University of Toronto, Toronto, ON, Canada

    Jorge Luis Fabra-Zamora

  2. Hermann Kantorowicz-Institute of Fundamental Legal Research, University of Kiel, Kiel, Germany

    Gonzalo Villa Rosas

Rights and permissions

Reprints and permissions

Copyright information

© 2021 Springer Nature Switzerland AG

About this chapter

Check for updates. Verify currency and authenticity via CrossMark

Cite this chapter

Waltermann, A.M. (2021). A Positivist Foundation of the Legal System: Popular Sovereignty as a Social Convention or Social Rule. In: Fabra-Zamora, J.L., Villa Rosas, G. (eds) Conceptual Jurisprudence. Law and Philosophy Library, vol 137. Springer, Cham. https://doi.org/10.1007/978-3-030-78803-2_5

Download citation

  • DOI: https://doi.org/10.1007/978-3-030-78803-2_5

  • Published:

  • Publisher Name: Springer, Cham

  • Print ISBN: 978-3-030-78802-5

  • Online ISBN: 978-3-030-78803-2

  • eBook Packages: Law and CriminologyLaw and Criminology (R0)

Publish with us

Policies and ethics

Search

Navigation