Year: 2015
Type: book-chapter
Abstract: H. L. A. Hart once remarked that a sovereign, according to the classical doctrine of sovereignty, is 'as essential a part of a society which possesses law, as a backbone is of a man'. 1 Not least as a result of Hart's own attack on Austin's theory of sovereignty, analytical legal theorists today agree that a sovereign is not just unnecessary for but incompatible with the existence of legal order.To explain the variety and persistence of legal norms, the continuity of legal order and the evident possibility of legal constraints on legislative power, so goes the contemporary legaltheoretical consensus, legal order must be regarded as rule-based.As a result, sovereignty can at best be an office defined by positive law.There can be no meta-legal, purely political power which is legally illimitable and yet functions as the source of all positive law. 2 Nevertheless, the doctrine of sovereignty is not without its contemporary defenders.The authors in question, though, rarely address the legaltheoretical worries about sovereignty head on.Rather, they argue that sovereignty is essential to the legitimacy of a modern democratic constitution.To be democratically legitimate, a constitution must, it is argued, be the product of an exercise of a constituent power which is prior to all positive law (including positive constitutional law) and which functions as the legitimating source of all positive legality.3
Author: Lars Vinx
Language: English
Subfield: Sociology and Political Science
Field: Social Sciences
Domain: Social Sciences
Open Access status: green
OpenAlex ID: W2500443149