IV.

Sovereign and Subject1

In criticizing the simple model of law as coercive
orders we have so far raised no questions concerning the
sovereign person or persons whose general orders
continue according to this conception, the law of any society.
Indeed in discussing the adequacy of the idea of an order
backed by threats as an account of the different varieties of
law, we assumed that in any society where there is law,
there actually exist a sovereign: a person or body of
persons whose orders the great majority of society
habitually obey and who does not habitually obey any
other person or persons.2

1 This chapter deals entirely with the Doctrine of Sovereignty which

asserts that in every human society where there is law, there exists a
relationship between subjects rendering habitual obedience and a
sovereign who renders habitual obedience to no one.The author
emphasized two points which are of special concern. The first point deals
with the concept of a habit of obedience -- that which is required on the
part of those to whom the sovereigns laws are applicable and whether
such habit would account for the two salient features of most legal
systems: continuity of the authority to make law and the persistence of
laws such that it succeeds those who made the law and those who
followed it. On the other hand, the second point deals with the position
occupied by the sovereign.

2 Hart, Concept of Law (1949), p. 50

The doctrine of sovereignty asserts that in every

human society, where there is law, there is ultimately to be
found the simple relationship between subjects rendering
habitual obedience and a sovereign who renders habitual
obedience to no one. This vertical structure relationship
between sovereign and subject is as essential a part of
society which possesses law, as a backbone is of a man.
Two points in this doctrine are of special importance.
The first point concerns the idea of a habit of obedience,3
which is all that is required on the part of those to whom the
sovereigns laws apply. The second point concerns the
position occupied by the sovereign above the law: he
creates law for others and so imposes legal duties or
limitations upon them whereas he is said himself to be
legally unlimited and illimitable.4
The Habit of Obedience and the Continuity of Law
The idea of obedience is not free from complexities.
However, it is not easy to state the connection between the
giving of the order and the performance of the specified act
in order that the latter should constitute obedience. Until, this
3 The first point inquires whether such a habit is sufficient to account for
two salient features of most legal systems: the continuity of the authority
to make law possessed by a succession of different legislators , and the
persistence of laws long after their maker and those who rendered him
habitual obedience have perished.

4 The second point inquires whether the legally illimitable status of the
supreme lawgiver is necessary for the existence of law.

concern is settled, the whole idea of a general habit of

obedience to the laws of a country must remain obscure.
Suppose that there is a population with a territory in
which Rex, as an absolute monarch, reigns for a very long
time. He controls his people by general orders backed by
threats requiring them to do various things which they would
not otherwise do, and to abstain from things which they
would otherwise do. Though there was trouble on the first
years of reign, things had settled down and the people
eventually followed his orders. It will be true of most people
in our imagined community, at any time after the initial period
of trouble, that they have generally obeyed the orders of Rex
and are likely to continue to do so. It is noted that in the
social institution under Rex, the habit of obedience is a
personal relationship between each subject and Rex;
each regularly does what Rex orders him to do or not to do.
Further, it can be observe in such institution that all that is
required from the community to constitute Rex as the
sovereign are the personal acts of obedience on the part of
the ruled. Each of them only needs to obey, and as long as
there is regular obedience, no one in the community needs
to express his view as to whether or not his obedience to
Rex is right and proper.
Unity is likewise present in the institution of Rex so
that it may be called a state. This unity is constituted by the
fact that its members obey the same person, event though
they may have no views as to the rightness of doing so.
Let us now suppose that, after a successful reign,
Rex dies leaving his son Rex II who then starts to issue
orders. The fact that there was obedience to Rex orders

does not automatically guarantee that there will also be

habitual obedience to the orders issued by Rex II. We shall
have to wait and see whether the people will follow the
orders of Rex II to be able to say that he is now sovereign
and his orders are law. Only after a considerable a period of
time to which his orders are followed before we can establish
that there established a habit of obedience. However, if there
is a rule that provides for the succession of the eldest son,
then Rex II will have the title and the right to issue orders,
which will lead us to say that said orders are already law
before the habitual obedience was established.
There are three salient differences between habits
and rules as follows:
a. For a group to have a habit, it is enough that
their behavior in fact converges;
b. Where there are rules, deviation from standard
is generally accepted as a good reason for
making it; and
c.

The internal aspect of rules.

Acceptance of a rule by a society at one moment

does not guarantee its continued existence. There may
be revolution; the society might reject the rules. Thus the
statement that the legislator has the right to legislate
presupposes the existence of a rule providing that the
legislator may do so. The continuity of legislative authority
which characterizes most legal systems depends on that
form of social practice which constitutes the acceptance of a
rule. It may be summarized that even if Rex, whose general

orders are habitually obeyed, such habitual obedience are

not enough as basis for the next legislator to succeed and
for the continuity of the legislative power because of the
reasons that habits are not normative, and habits cannot
refer to a class or line of successive legislators. Just
because there is habitual obedience in one legislator
doesnt not mean that there will also be habitual
obedience to the succeeding legislator.
The Persistence of Law
In 1944 a woman was prosecuted in England and
convicted for telling fortunes in violation of the Witchcraft Act
(1735). This is an example of a legal phenomenon that a
statute enacted centuries ago may still be law today.5
We cannot narrow the application of laws and
conclude that their survival and applications solely depend
on the lifetime of their makers and those people who initially
obeyed them. In simple terms or our previous Rex example,
consider REX I, II, and III, all qualified to legislation under a
general set of rule. When the individual ruler dies, the
legislation he created lives on and carried on to the next
legislator. An ingenious attempt to explain such phenomenon
was made by Hobbes, echoed by Bentham and Austin, said
that the legislator is he, not by whose authority the laws
were first made, but by whose authority they now continue to
be laws.
Legal Limitations on Legislative Power
5 How can a law made by an earlier legislator, long dead, still be a law
for a society that cannot be said habitually to obey him?

In the doctrine of sovereignty, the general habit of

obedience of the subject has, at its complement, the
absence of any such habit in the sovereign. He makes law
for his subjects and makes it from a position outside any law.
It is important to understand that the legally unlimited power
of the sovereign is his by definition. This means that the
power of the legislative power can only be limited if the
legislator creating such legislations were acting under
the orders of another legislator. Therefore, if he is
sovereign, then he is not following any other legislator and
there are no legal limits in his legislative power. This theory
does not insist that there are no limits on the sovereigns
power, only that there are no legal limits on it.
The sovereign, however, may decide to defer in
performing legislative powers depending on the surround
circumstance and the consequences of exercising such
power. Example, he may defer from exercising such power if
he fears a revolt or uprising will be staged against him
should he exercise such power. This may be considered as
limit to his power. However, it cannot be considered as legal
limits as he is not under any obligation to abstain from
legislation.
In summary,
established by Hart:

the

following

are

the

concepts

a. Legal limitations on legislative authority consist

not of duties imposed on the legislator to obey
but of disabilities contained in rules which
qualify him to legislate;

b. In order to establish that an enactment is law,

we have to show that it was made by a
legislator who was qualified to legislate under
an existing rule and that either no restrictions
are contained in the rule or there are none
affecting this particular enactment;
c. In order to show that we have independent
legal systems, we have to show that the rules
which qualify legislator do not confer superior
authority on those who have also authority over
other territory;
d. We must distinguish between a legally
unlimited legislative authority and one which,
though limited, is supreme in the system; and
e. The legislators habits of obedience are at the
most of some indirect evidential importance.

The Sovereign Behind the Legislature

There are in many world legal systems in which the
body is subject to legal limitations on the exercise of its
legislative powers; yet the enactments of such legislature
within the scope of its limited powers are plainly law.
Examples of substantive limitations are the separation of
powers, the bill of rights, particularly the provision which
provides that no person shall be deprived of life, liberty, or
property without due process of law.
If a legislature is subject to limitation which can be
removed by the members of the legislature, then such
legislature has no legal limitation. Viewed differently, 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 manners in which the sovereign electorate
chooses to exercise its sovereign powers.