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The Concept of Law

The Concept of Law (3rd edn)

HLA Hart, Joseph Raz, and Penelope A. Bulloch
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date: 20 August 2022

IV. Sovereign and Subjectlocked

IV. Sovereign and Subjectlocked

  • H. L. A. HartH. L. A. Hartlate Professor of Jurisprudence, Principal of Brasenose College, and Fellow of University College, University of Oxford

Abstract

Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. The doctrine of sovereignty asserts that in every human society, where there is law, there is ultimately to be found latent beneath the variety of political forms this simple relationship between subjects rendering habitual obedience and a sovereign who renders habitual obedience to no one. This vertical structure composed of sovereign and subjects is, according to the theory, as essential a part of a society which possesses law, as a backbone is of a man. This chapter considers two important points in this doctrine. The first concerns the idea of a habit of obedience, which is all that is required on the part of those to whom the sovereign's laws apply. The chapter examines 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. 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. The chapter inquires whether this legally illimitable status of the supreme lawgiver is necessary for the existence of law, and whether either the presence or the absence of legal limits on legislative power can be understood in the simple terms of habit and obedience into which this theory analyses these notions.

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