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Jose Luis General 2-E

Sovereign and Subject


Chapter IV
In introducing this chapter, Hart mentions that criticizing the simple model of law as coercive
orders lacks a discussion of the sovereign. This is mentioned because it is always a presumption that in
any society where there is law, there is a sovereign. This person or group of persons is characterized as
an individual or group whose orders are the laws of the society. The sovereign is the one who is
habitually obeyed by the great majority of the society and no one else is obeyed except the sovereign.
With that, Hart proceeds in introducing the doctrine of sovereignty, which is one of the general
theories of foundations of all legal system. This doctrine is about a vertical structure commanded by law
where people on the uppermost part of the structure are the sovereign while people below the are the
subjects. Where the law, sovereign and subjects are present, there is an independent state to speak of.
However, where there is no law that binds the subjects with the sovereign, there is no independent
state to speak of.
There are two points in the doctrine of sovereignty that are of special importance. First is the
habit of obedience. An inquiry shall be made whether such habit is adequate for the two most
important features of a legal system. These are continuity and persistence. The former is concerned of
passing the authority to make law from one person or group to another while the latter is concerned of
the obeying the laws made by one sovereign throughout time.
Second is the position occupied by the sovereign above the law where the sovereign gives
orders that impose on the subjects some duties and limitations while the sovereign remains unlimited
and illimitable. The inquiries on this second point are whether the illimitability of the sovereign is
essential for the existence of law and whether the absence or presence of the limits on legislative
powers can be related to the simple legal theory of habit and obedience.
I. The Habit of Obedience and the Continuity of Law
The habit of obedience is very complex term because the word obedience suggests many
things. It may be said that obedience is deference and not just compliance. The connection between the
giving of the order and the performance of the order may also be asked because there are times when
some acts are done regardless of the presence or absence of any order. These complexities should be
settled first so that the general idea of habit of obedience should be fully understood.
Given the complexity, Hart gives an example of a sovereign named Rex. This person is an
absolute monarch whose reign started in an era of trouble. His orders are law and the law is backed by
threats. His orders are often onerous and precisely, the temptation to disobey is great. However, the
risk of punishment is considerable so there is eventually obedience on the part of Rexs subjects. This
example cannot be considered as a habit in the in the usual sense of the word. Although men may
naturally obey the law in a habitual way such as slowing down a car once the orange light is lit, there are
cases when men reluctantly or unwillingly obey law such as paying the required taxes by the
government. The latter case cannot be, in the simplest sense of the word, considered as a habit because
a habit is a natural, consistent doing of an act often done in ones own will such as having lunch at 12:00
PM. The obedience to Rex lacks this element of a habit. However, one essential element is present and
that is the likeliness to repeat the behavior. Since Rex has been obeyed for such a long time from a time
of troubles to a time of normality, it can be said that the subjects of Rex generally obeyed him and it is
likely that they will continue to obey him.
It is to be noted that the social structure under Rex is composed of thousands of personal
relationships between the sovereign and the subjects, i.e. Rex and each person within his domain. This
may be compared with the natural habit of each man going to the movies every week. It may be said
that the habit of each and every person under the control of Rex to obey the latter is convergent.
What is required for the community so that Rex will continue to be considered as a sovereign is
the personal acts of obedience of each and every person to Rex. This kind of society under Rex is a very
simple one; however, this community has certainly some of the elements of a state as there is unity in
it because there exist a law, a sovereign and the subjects. The state is complete with this unity even
thought the subjects have no views of the properness of obeying their sovereign.
Hart then mentions a possible case: Rex I dies and his son Rex II succeeds. With this, Hart points
out that the last order of Rex I is precisely law but the first order of Rex II can not be considered right
away as law. This is because Rex II needs to establish first the habitual obedience of the people to his
orders. Hence, it cannot be said right away the orders of Rex II are laws. There is an interregnum that
can be considered as a time having no laws being created as orders by Rex II cannot be considered yet as
habitually obeyed. A time element is required.
This case presents a number of dangers including the most essential, which is discontinuity.
There is a need, therefore, to secure the continuity of law-making power and this can be done by
creation of rules that indicate the criteria, the qualifications, the procedures, and the like of transferring
the law-making power from one person or group to another.
Applying this rules on Harts example, Rex I may make rules on succession to the throne so when
he dies Rex II automatically has the right to claim the throne. Hence, the continuity of law-making is
secured without the necessary requirement of habitual obedience by the people. The effect is that the
first orders of Rex II are already laws notwithstanding there are people who disobey him.
In the simple legal system of Rex I, there are just orders that are habitually obeyed and that is
simply enough for Rex I to be considered as the sovereign. However, this simple legal system does not
provide rules and that includes the rule of succession. Hence, in this legal system, there can be no title
or right for anyone to succeed. For Rex II to succeed without protest and without legal infirmities there
should be a more complex practice present in the society and that is acceptance by the population of
the rule of succession.
Introducing this more complex practice, Hart then analyzes that there must be a difference
between a rule and a habit. True enough, there is a similarity between these two. The similarity is that
the behavior, whether it be a rule or a habit, is a general one but not necessarily constant. What is
meant by this is that most members of the group, if not all, do the behavior when the occasion arises.
Although there is this main similarity, there are three noticeable differences.
Firstly, a social habit becomes such when the behavior of each member of a group converges.
Any deviation from this behavior is not considered as undesirable. It is not open to criticism and it is
absolutely not necessary to pressure the deviating individuals to not deviate. In cases where there is a
rule, a deviation from the rule is met with threat and pressure to conform.
Secondly, when there are rules, the criticism to any act of deviation is considered and also
accepted as justified or legitimate. It is a good reason in making that criticism for those who made it and
for those whom it is applied. The test in seeing that there is indeed a rule is when a certain minority
breaks a standard and that this minority sees that standard as unfit for them or even to others.
Thirdly, there is an internal aspect when rules are indeed present in behaviors that converge.
What this means is that there is supposed to be a form of consciousness in each person that his
behavior is in compliance with a set of standards and that any deviation from it will constitute an
offence or the like. On the other hand, in habits, there is an external aspect in which people do not
consciously think of the things they habitually do as a requirement or as compliance. In addition, this
external aspect suggests that people doing converging behaviors are not aware that the behaviors they
do are general.
According to Hart, the internal aspect of rules may be related to any kind of game like chess. To
illustrate, an external observer may see that Bishops are habitually moved diagonally. However, for the
players themselves, there is for them an internal aspect that limits their moving of the Bishops because
there are rules in elimination (of pieces), learned skills in strategy, and most importantly rules in winning
the game.
In addition to the internal aspect of rules, Hart mentions that this is sometimes confused as
mere matters of feelings. However, this should not be so because it is neither a requirement nor a
supplementary for the existence of binding rules. This is because rules may be followed with or without
any accompaniment of any feeling that is present in compulsion or restriction. The only thing necessary
is that there should be a critical reflective stance to behavior that is generally observed as a common
standard, and by this, there should be an acknowledgement that the rule is justified and legitimate.
Mentioning the crucial features between social habits and rules, Hart now returns to the law. He
speaks of an important and more complex aspect of rules. A rule does not just make a behavior a social
standard, a rule also provides identification of standards of behavior, which may be spoken or written.
Applying this to Rex I, he, as the sovereign, may make a written or oral identification of standards of
behavior. With this, his being an absolute monarch may be limited in some sense since he will also be
bound by this written or spoken identification of standards of behavior because this gives everyone,
including Rex, rights and duties. He then becomes a legislator with authority and as a legislator he
should follow standards the same way as everyone does. He no longer does give orders that should be
followed only by everyone (excluding Rex I).
With this, rules that are not from Rex I shall be distinguished as customary rules. The latter is
also distinguished from general habits. The words of Rex shall be the standard of behavior and any
deviation from that shall be subject to criticism or punishment.
To understand the concept of legislative continuity, some things may be observed in certain
cases. Even before a certain legislator begins to legislate, there may be a rule that entitles him or a class
of persons the power to legislate. Hence, when his time comes, he may claim this right. In the case of
Rex I, there may be a rule that the eldest son of Rex I shall succeed him. This kind of rule is different, and
it may also be said more complex and advanced, from the habit of obeying Rex I because this rule looks
forward to time and it includes two separate lawgiversRex I and his successor.
The rule may thus exist when the great majority of the society accepts it. In Rex Is situation the
acceptance of the rule may be a part of the habit of obeying Rex I. That is only a part of the situation,
what is more important is that acknowledgements of his orders are in virtue of Rex Is qualification. By
acceptance, there may be two presuppositions: a statement of law in which one has the right or is
entitled to legislate and a statement of fact in which a future legislator may likely receive the same
obedience like that of his predecessor.
However, this legislative continuity is not guaranteed and thus, it may be interrupted or even
totally abandoned. There is a possibility when the people disobey the rule and revolt against the present
regime. This means that there may be a temporary or permanent cut of this legislative continuity.
However, there may be obscure or confused stages when there is no certainty if obedience by the
people is already totally abandoned. In the absence of an evidence, it may be assumed that the rule still
exists and is still accepted.
For all these, Hart seems to be content that in the world of Rex I and Rex II, it is enough to show
that in most legal systems, the continuity of legislative authority depends on whether or not a rule is
accepted by the great majority of the people. As a summary of the argument, Hart presents that the
habit of obedience to one legislator is not enough for this habit to be continued when another legislator
assumes the title as law-giver. Firstly, habits are not normative and they do not confer power on any
assumed heir to the throne or successor of the legislator. Secondly, a habit of obedience to one
individual cannot be passed abruptly from one to another.
Before ending the sub-chapter, Hart goes back to the ideas of Austin as his theory relates to the
foregoing. Hart is confronted of a problem that what he relates in the previous paragraphs only refer to
simple or tribal societies. This may not be enough to reveal the essential difference between accepted
rules and habits. As we all know, in modern societies, there are constitutions and other laws. The great
majority may not understand the complexity of how a legal system works. For this, courts may be
consulted and for ordinary citizens, they may have access to lawyers.
There is a complex phenomenon of how general acceptance of a rule is manifested in a complex
society. Clearly, officials and ordinary citizens are divided on how this is manifested. For a legislator, it is
crystal clear that he accepts the rule because his official acts cannot be done without so manifestly
accepting the rule since the rule itself entitles him of this acts performed by him. For an ordinary citizen,
he shows his acceptance by not protesting on the results of the official actions. He accepts the law and
he exercises the rights conferred on him and he obeys the limitations. This is in the disadvantage of the
ordinary citizen since he does not know where these laws come from and how they are made. It limits
the citizens of what they want to do since any amount of disobedience to the law may constitute a valid
ground of arrest or imposition of fines. With this idea, the concept of habitual obedience to orders
backed by threats is reinforced as the foundation of legal systems. However, this doctrine distorts
another important aspect of legal system which is the important concepts behind the creation,
identification and the application of law.
II. The Persistence of Law
Hart begins the second subchapter by giving an example of a law enacted in the 18
th
Century
that is still applied in the 20
th
Century. However, this situation seems to be in conflict to the scheme of
laws as ordered by someone who is habitually obeyed. For this, a question is presented and that is: how
can a law be still obeyed when the fact is this law is created by a group of persons who are already no
longer obeyed because of the simple fact that they have long been no longer in authority and they have
long been dead?
The answer to this problem is substitution. As already mentioned in the previous subchapter, an
order of a law-giver may become a rule so as to constitute a standard behavior of a society. This law-
giver then becomes a legislator who naturally then acquires the right to legislate. Hence, a rule does
formulated now does not only involve its application to the present time but also the future.
Relating this to the world of the Rex dynasty, the rule that the eldest child of the current
sovereign shall succeed entitles every eldest child of succeeding generations such right. In more complex
societies, this may not be so because every succeeding legislative body may create rules that differ from
the previous. However, the acceptance of a rule of one generation to another recreates the whole idea
of the persistence of law. There is a mystery in some sense. This may be related to a sporting event
when an umpire may be substituted by another; however, the decisions of the first umpire during the
earlier part of the game may not be changed by the succeeding umpire. Having this example, Hart now
presents a question: Is it possible to dispense with this complexity, and by some ingenious extension of
the simple conception of orders backed by threats to show that the persistence of laws rests, after all,
on the simpler facts of habitual obedience to the present sovereign?
Hobbes may have an answer for this. He said that the legislator is he, not by whose authority
the laws were first made, but whose authority they now continue to be laws. This statement of Hobbes
suggests that laws enacted by previous legislators are still laws not because these are ordered by the
present legislator but only that the latter recognizes these laws. The recognition is almost always done
in a tacit expression of the will of the sovereign. This concept is explained in detail in Chapter III.
However, the criticisms found in that chapter apply more obviously when these criticisms are applied in
explaining on how laws made by a previous legislator are recognized by the present one. The situation in
which a court applying a customary rule and this is eventually declared as law cannot be similar to
another situation in which a court applying a law made by a previous legislator and is eventually
recognized as law applicable in the present. The latter situation is rather absurd because of the fact that
this act of repealing past enactments by the court cannot be done because the legislator itself does not
exercise this power of repealing laws. So, every law enacted in the past should have the same status as
the law enacted in the present.
Hence this theoretical situation, in which laws enacted in the past may be law to be applied in
the present only if it is recognized, is rejected. With this, the concept of Legal Realism is introduced. A
version of this theory presents that a statute cannot be law unless it is applied by the courts. Another
version fully negates that the status of law of any statute may belong to either past or present legislator,
regardless of the fact that the court applies it. Similarly related to the latter version of the Legal Realism
theory is the full Realist theory in which it states that the statutes of the present sovereign, as compared
to those of the past, have the status of law even before the court apply them. This, according to Hart, is
absurd because no valid distinction can be made between a statute made in the present and an
unrepealed statute made in the past.
III. Legal Limitations on Legislative Power
In a simple and primitive legal system, the general habit of obedience of the subjects is
complemented by the fact that the sovereign has no such habit. He makes laws for his subjects and
there can be no way that a limitation shall arise in this law-making power. If there is a limit to his law-
making powers or if there is any situation of subordination of the sovereign, he can no longer be
considered as the sovereign or the ultimate law-giver. This theory is somehow absurd because in every
legal system, there is always a limit in this law-making power no matter how subtle. Although this may
be absurd, the theory may be observed behind the forms.
However, this theory should not be misinterpreted because the theory only states that there
may be actual limits but there can be no legal limits to the sovereigns law-making power. This is so
because the sovereign has all the right and power to order any wish he may have wanted. However, he
may defer in actually ordering this since he may be afraid that this command may brew an unpopular
opinion against him. He may also defer because of moral and humanistic reasons. However, there can
be no legal limits as he may command any act and this giving of command is rightfully entitled to him.
This theory presents two major questions. First, there can be an identification of his general
orders which may be distinguished from the other rules, standards, morals, customs and the like, which
the sovereigns subjects are also governed. Second, there can be a comparison between legal systems
and there can be an identification of whether a legal system is part or subordinate of a wider one.
Going back to the world of Rex, Hart imagines a world where every word of Rex constitutes as a
standard of behavior. However, this kind of world may inconvenience Rex because he may want to give
private orders that only apply to a certain individual, say, for example his wife or his assistant. For Rex,
these private orders should not be treated as having official status. Hence, for him to avoid this
dilemma, he should observe the proper required forms so that his words may either be orders of a
private or official status. This, however, cannot be considered as a legal limit since the scope, if not the
form, of his legislative power is unlimited.
The objection to this theory is that it is that illimitability of power is not necessary for law to
exist. This is so because in many societies, especially in modern ones, there is of course law although the
legislative power is boxed and limited, considering that societies nowadays are generally guided by its
constitutions which confer powers, provide rules and most importantly, limit acts. These constitutional
limitations are more appropriately called as limitations of substance.
However, before discussing more complex societies, Hart goes back to the simple world of Rex,
in which Hart tries to find a limit in his being a supreme legislator.
If there is a constitution that limits the powers of Rex I, say, for example that he cannot give
orders that violate the concept of ownership (property rights). This constitution, however, does not limit
in a sense that it gives him orders or duties. It does not impose any legal duty but only legal disabilities.
To say, any order from Rex that in fact violates individual ownership shall only be considered void. This
then implies that there is an absence of legal power.
Although there are constitutional limits that are valid, this does not go to show that the absence
of legal power constitutes an absence of habitual obedience to Rex. Although Rex may actually evade
the rules on the constitution, it does not mean that he is disobeying anyone or that he fails to comply
with a duty imposed by another. The only thing that is certain is that he did not make a valid law.
With all these mentioned, Hart summarizes the subchapter in five points. Firstly, legal
limitations do not constitute any duties or obedience to any superior legislator. It only imposes legal
disabilities.
Secondly, for an enactment to be established as law, what is needed is to show that this is made
by a legislator who is qualified to legislate. In addition, there should be no legal restriction that
invalidates this particular act of legislation.
Thirdly, for an independent legal system to be established, what is needed is to show that the
rules that confer authority to a sovereign do not entitle the latter to impose duties or give orders to
another.
Fourthly, there is a need to distinguish between a legally unlimited legislative authority and a
limited yet supreme authority.
Lastly, the habitual obedience of a legislator to another is evidence that the former is
subordinate to the latter despite that fact that there is no constitutional or legal rule that declares such
subordination.
IV. The Sovereign Behind the Legislature
In this subchapter, Hart supposes that where there is law, there is a sovereign incapable of legal
limitations. The focus on this subchapter is the search for this sovereign behind the legally limited
legislature.
For this to be answered, Hart starts with a distinction between provisions for the qualification of
legislators and the manner and form of legislation, and substantial limitations. The distinction may be
seen in various modern legal systems, including that of the United Kingdom, South Africa, Australia and
the United States. The most apparent example of a substantial limitation can be found in the US
Constitution in its Fifth Amendment, in which it states, no person shall be deprived of life, liberty or
property without due process of law. Once these limitations are violated, statutes or acts of
government may be declared invalid by the courts.
In some legal systems, like that of the Switzerland, there are many different devices that
guarantee the protection of these constitutional limitations from the operations of the legislature. In the
United States, and as well as the Philippines, the concept of political question exists, in which the
courts may not have jurisdiction because certain governmental acts are within the exclusive province of
a government branch.
Although there are legal limitations as provided by the constitution, this does not guarantee that
the constitution will never be amended or even abandoned. If amendment is exercised, then a sovereign
without legal limitations may therefore exist.
But the question is: is the legislature the sovereign? As Austin pointed out, the sovereign is not
the legislators themselves but the ones who elected them. The legislators are holding their office in trust
for those who have elected them. Basically, Austin pointed out that the electors or the people are the
sovereign. With that, the theory may accommodate that the people are the sovereign, since the people
meet the requirement that a sovereign should be free from all legal limitations.
The people being the sovereign is a dramatic transformation from the simple world of
absolutism of Rex to democracy, in which sovereignty resides on the greater majority of the people.
However, a problem arises because in a democracy, the elements of habit of obedience is lacking.
This is so because the electorate being the bulk of the society and being the assumed sovereign
cannot obey orders and at the same time provide orders.
To answer this criticism, it is important that a distinction be made. The members of the society
should be divided between persons in their private capacity and the same persons in their official
capacity. In their official capacity, they should follow procedural rules in so that their orders made in
their official capacity be established as law.
For these rules to exist and constitute as orders of the sovereign, these rules should have
existed and have been followed for a specific time period.
Now, the question arises: are these rules just a part of the great majoritys habit of obedience?
To answer this, it is necessary to ask whether the sovereign is an individual person that is definite or the
sovereign is an indefinite number of persons, particularly the electorate. Because when there is only one
identifiable person as the sovereign and there are forms and rules for his orders to be law, it is only
enough to follow these rules and it can be said that these forms and rules are part of the habit of
obedience of the greater majority. On the other hand, if there is no single identifiable sovereign, the
forms and rules may constitute as the sovereign. But this cannot be so because this will result in the
electorate obeying itself. If the elected officials constitute as the sovereign, then the old problem
arisesthe legislature is subject to legal limitations.
This leads us to a conclusion that the theory is mistaken. The concepts of orders, habits and
obedience are not sufficient for the analysis of law. To remedy this, what is needed is to focus on rule
conferring powers that are to be delegated to qualified persons who will legislate by validly following
the procedures.
In addition to the general inadequacy of the theory, the theory cannot accommodate the fact
that the supreme legislature may have legal limits. If, for example, the electorate was the sovereign,
there could be legal and natural limitations such as the power to amend the rules. Hence, the electorate
cannot be the sovereign.
So, if it is not the electorate, could it be the society the real sovereign? This could be the case
because the legal limitations imposed on the electorate could be ordered by the society. Failure to
amend or failure to revolt against the status quo may be interpreted as legal limitations imposed by the
society. However, there arises a problem because it would be necessary to differentiate legislation and
revolution. This idea, then, should be rejected.
As a final note, the situation where the electorate votes for its legislators is limited in a sense
that this only exists in a democracy and other closely similar legal systems. In the world of Rex I, it is
completely different because Rex I has legislative powers that are limited yet at the same time supreme.