Concept of Legal Sovereignty

CONCEPT OF LEGAL SOVEREIGNTY, POSITIVE LAW AND POSITIVE MORALITY
2.2- JURISPRUDENCE
Submitted by:-
Shweta Shrimal
UID: UG2018-100
B.A.L.L.B. (Hons.) I Year-2nd Semester
Submitted to:-
Dr. Ragini Khubalkar
Assistant Professor of Law
MAHARASHTRA NATIONAL AW UNIVERSITY, NAGPUR
0
TABLE OF CONTENT
Contents
RESEARCH METHODOLOGY.............................................................................................................2
AIMS AND OBJECTIVES.......................................................................................................................3
RESEARCH QUESTIONS.......................................................................................................................3
CHAPTER- I...............................................................................................................................................4
CHARACTERISTICS OF LEGAL SOVEREIGNTY........................................................................4
LEGAL SOVEREIGNTY AND POSITIVE SOVEREIGNTY..........................................................4
NATURAL LAW....................................................................................................................................6
NATURAL LAW THEORY OF MORALITY.....................................................................................6
POSITIVE LAW....................................................................................................................................7
POSITIVE MORALITY.....................................................................................................................11
CONCLUSION........................................................................................................................................14
BOOKS.....................................................................................................................................................15
ONLINE DATABASE.............................................................................................................................15
1
INTRODUCTION
Legal positivism is the thesis that the existence and content of law depends on social facts and
not on its merits. The English jurist John Austin formulated it thus: “The existence of law is one
thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be
not conformable to an assumed standard, is a different enquiry.” 1 The positivist thesis does not
say that law's merits are unintelligible, unimportant, or peripheral to the philosophy of law. It
says that they do not determine whether laws or legal systems exist. Whether a society has a
legal system depends on the presence of certain structures of governance, not on the extent to
which it satisfies ideals of justice, democracy, or the rule of law. What laws are in force in that
system depends on what social standards its officials recognize as authoritative; for example,
legislative enactments, judicial decisions, or social customs.2 The fact that a policy would be
just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law,
and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for
doubting it. According to positivism, law is a matter of what has been posited as we might say in
a more modern idiom, positivism is the view that law is a social construction. Austin thought the
thesis simple and glaring. While it is probably the dominant view among analytically inclined
philosophers of law, it is also the subject of competing interpretations together with persistent
criticisms and misunderstandings.
RESEARCH METHODOLOGY
The researcher made sure that he cleared his mind of all the inclinations, biases and prejudices
before he conducted his research for this project. It is these inclinations, biases and prejudices
that hamper the flow and understanding of a research topic being deliberated upon by a
researcher. It is also the underlying duty of any researcher to do the same for a proper and
transparent representation of the research so conducted by him. The researcher has used the
doctrinal method of research and has used the secondary sources.
1 Studies In Jurisprudence and Legal Theory. V.N. Paranjape, 8th edition, p 31.
2 Jurisprudence by R W M Dias, 5th edition, p 19.
2
AIMS AND OBJECTIVES
The researcher in this projects aims to study about the concepts of legal sovereignty. From the
ideas receives the project contains descriptive and analytical study of legal sovereignty. Through
this research the researcher aims to give a detail idea of legal sovereignty as positive law and
positive morality. The researcher also aims to give a detail idea about positive law and moralty.
The researcher had following objectives during the completion of this project:
 To study the concept of legal sovereignty;

 To differentiate between positive law and positive morality; and
 To evaluate the reasoning behind the introduction of positivism.
RESEARCH QUESTIONS
 What is the point of differentiation between legal sovereignty and political sovereignty?
 Why was natural law criticized?
 On what points was the theory propounded by Austin criticized?
SCOPE AND LIMITATIONS
The researcher paper studies the concept of legal sovereignty, positive law and positive morality
and its application in the present scenario. The concept is so vast that study of the topic
individually and in depth would lead to a very complex research. The researcher took help from
various books and websites to derive at conclusions. However due to limited resources and time
the researcher could not go beyond the material produced in the paper.
3
CHAPTER- I
CHARACTERISTICS OF LEGAL SOVEREIGNTY
1. The legal sovereign is always definite and determinate.

2. Legal sovereignty may reside either in the person of a monarch as in an absolute
monarchy, or it may be vested in a body of persons as in a democracy; King or Queen
and Parliament in Britain.
3. It is definitely organized, precise and known to law.
4. It alone has the power to declare in legal terms the will of the State.
5. Disobedience to the imperatives of the legal sovereign means physical punishment.
6. All rights emanate from the legal sovereign and it can take them back or even annul
them.
7. The authority of the legal sovereign is absolute, illimitable and supreme. It is subject to
no control within and without the State.
LEGAL SOVEREIGNTY AND POSITIVE SOVEREIGNTY
The problem of good government is largely the problem of the proper relation between the legal
and the ultimate sovereign.3
In a system of direct democracy legal and political sovereigns practically coincide, because the
people are directly concerned in making laws.4 Their expressed will is not a mere opinion, but a
law itself. They also elect and remove their rulers, in indirect democracy representatives of the
people make laws. They constitute the legal sovereign and the people who elect their
representatives may roughly be called the political sovereign.

4
Law ought to conform to the wishes of the electorate and the legislators must obey their
mandate. If they do not, the electorate and the legislature are not in harmony with one another
and disharmony between the two tends to create political friction.
Really, legal and political sovereign are not two separate entities. They are two aspects of the
sovereignty of the State, though expressed through different channels. When there is friction
between the two it is highly detrimental to good government.
Law must be the manifestation of the will of the people and if the legal sovereign cannot accept
the verdict of the political sovereign, the representatives of the people should be re-elected and
the legislature reorganized and reconstituted so as to become the mirror of their opinion.
“Individual is, ultimately, the supreme arbiter of his behavior”5 and “if the State is to be a moral
entity, it must be built upon the organized acquiescence of the members.”
The last word remains with the ultimate sovereign, the electorate. Indeed, in some democratic
States there often seems to be “a larger degree of obedience from the sovereign Parliament to its
constituents than there is the other way round; a series of by-elections, for instance, produce with
amazing rapidity a change in the will and temper of the sovereign.”6
The legal sovereign, therefore, cannot act against the will of the political sovereign. If it does, a
legal truth may become a political untruth. A legislature, which legislates in a manner contrary to
the will of the people, will be replaced by one more faithful to the popular will. “In other words,
the political sovereign lies behind and conditions and, thus, limits the legal sovereign, though,
legally speaking, the legal sovereign is omnipotent.”
The distinction between the legal and political aspects is necessary and useful in that it reminds
us that we are dealing with the power, not of an inanimate machine, but of human beings over
their fellowmen. We know from History that, however absolute the legal right to exercise power
may be, there is a limit in practice. Human beings will stand just so much.
NATURAL LAW
6 A Textbook of Jurisprudence by G.W. Paton, 4th edition, p 33.
5
Legal systems have a function to secure justice. Grossly unjust laws are not really laws at all,
but a perversion of law or mere violence. As St. Augustine put it, lex injustia non est lex.
Aquinas’s way of stating this point: positive law has as its purpose the common good of the
community. Any positive law which conflicts/is inconsistent with either natural law or divine law
is not really law at all. Hence, not only is there no moral obligation to obey it, but there is no
legal obligation to obey it, either. Augustine, Aquinas, and Martin Luther King are supporters of
this view. Lon Fuller argued there is some necessary overlap between legality and justice,
because it’s impossible to have a legal system without fidelity to the rule of law and formal
justice. But Fuller does not go as far as Augustine or Aquinas, because he admits that a society
can have a genuine legal system that satisfies the demands of formal justice yet still have
particular laws that are unjust.7 In such a society, judges are independent of the other branches of
government and decide cases on their merits, the society honors the principles no punishment
without a crime and no crime without a pre-existing, public law, the accused receives a fair trial
with due process of law, etc. But still, some of the laws that are consistently and fairly enforced
are unjust. Ronald Dworkin, whom will talk about more later, defends a view of legal
interpretation by judges that he claims is in the tradition of the natural law theory of positive law.
Dworkin argues it is proper for Supreme Court justices to interpret the Constitution in light of the
correct principles of justice that our country tries to honor.8
NATURAL LAW THEORY OF MORALITY
Even things which are not man-made have purposes or functions, and the good for anything is
the realization of its purpose or function. 9 The good for us human beings is happiness, the living
of a flourishing life. Happiness or flourishing consists in the fulfillment of our distinctive nature,
what we by nature do best. That involves the development and exercise of our capacities for
rationality, abstract knowledge, deliberative choice, imagination, friendship, social cooperation
based on a sense of justice.10 The moral virtues are character traits that help us fulfill our true

6
nature. The life of the heroin addict or of the carnal hedonist is not a good one, because it is
inconsistent with our natural function. Natural law is the set of truths about morality and justice;
they are rules that we must follow in order to lead a good or flourishing life. 11
We can know
what these principles are by means of unaided human reason. The natural law theory of morality
rejects ethical subjectivism right and wrong are all a matter of opinion and affirms ethical
objectivism some moral opinions are more valid, reasonable, or likely to be true than others.
Immoral acts violate natural law. Hence, immoral behavior is unnatural in the sense of contrary
to our function, not nowhere to be found in the natural world, whereas virtuous behavior is
natural. For example, lying is unnatural, Aquinas holds, because the function of speech is to
communicate to others what is in our minds. When we use words to mislead others, we are using
them contrary to their proper function.
POSITIVE LAW
Positive law is a reaction against particularly that aspect of Natural law theory. It insists on a
distinction between human law, which they call positive law and moral and scientific laws.
Human laws are posits of human society while scientific laws are independent of what we take
them to be. The Classical version of positive law theory is John Austin's command theory. His
model was that of a definition and his goal was to give a definition of law that removed all
evaluative language. We see some continuity with Aquinas' natural law. While he rejected the
blurring of law and morality, he did give a similar unified definition of law: "A rule laid down for
the guidance of an intelligent being by an intelligent being having power over him." 12 God and
men both make laws so his distinction is between the laws of God and those of historical human
societies made by political "\superiors. He insisted on distinguishing the theory of law from the
science of legislation which had to do with the criticism of the law.
Austin is a prime example of a positivist in legal theory, but his was only one version which we
call command theory: Law, Austin reasons, has the status of command. Austin then defines
command as any signification of a desire by the sovereign. He then defines the sovereign as the
11 Ibid.10.
7
determinate rational being or body that the other rational beings are in the habit of obeying. Each
of these further definitions is an attempt to substitute a descriptive analysis of some prescriptive
concept. The notion of a command, for example, includes a normative element of authority and
imperative similarly sovereign has a normative element of legitimacy. He tries to define these
both away through the notion of shared habits.
The rest of the definition of command is important. Austin's analysis of a law is different from a
normal command in the sense that a law must be logically general. The court makes particular
judgments, but the legislation is always general in form. A direct, one-time command to an
official is not law. Law is a command to forbear a whole class of acts.
There is a further element that Austin thinks is inherent in the notion of law-namely that of
punishment. However, punishment also has a normative connotation, namely, of a harm that is
deserved or results from violation of a valid law. This Austin tries to define away with the words
accompanied by the threat of evil in case he does not.13
The problem, simply, is that the definition doesn't capture our concept. The counter-attack on
positivism focused mainly on the command aspect and its link to punishment. We distinguish
laws from illegitimate commands. Rule by a criminal gang may be generalized and backed by
threat of force, but it is not the rule of law. And many laws have no punishments attached to
them.
Austin knew about and acknowledged some of these difficulties. You will notice his answers in
the text. He addresses declaratory laws such as laws that repeal laws and laws with no penalties,
laws merely creating rights for example and laws defining marriage. Other problems arise,
especially for Austin, with English customary laws. Austin explains all of these away with his
notion of tacit consent of the sovereign. Since the king does not object, he must have consented.
However, they certainly require a very loose application of a signification of desire.14
Other problems concern international and primitive law. Most legal history recognizes laws of
primitive tribes that have no writing, hence, no formal, legislated code. Austin's somewhat
unsatisfactory response is primitive law is not law. A good theory could take that position, in
8
principle, but not when we present it as a counter-example to the definition. We naturally judge
that the definition fails if it does not explain our normal use of law.
Another problem has to do with Austin's failure to recognize a kind of complexity in the law. In
England and America, there are layers of law which Austin cannot easily make sense of. They
treat the constitution and treaties as a higher law. Such a law constrains subsequent legislation
and Austin's command theory makes little sense of that. It has equal trouble with the complex
federal legal system where each state is sovereign and yet part of another state.15
The attempt to eliminate evaluative language fails. Austin tries to make law closed on facts, but
the effect is to make it mysterious how there could be any legal obligation or right.
Some of the most devastating criticisms of Austin's Command theory comes from other
positivists. One is H. L. A. Hart, whom we will read frequently in this class. He raised the
problem alluded to above of the mob of gangsters on an island. 16 Their demands on the local
population seem to meet Austin's definition but we would call theirs the opposite of a rule of law.
Hans Kelsen developed an interesting modern version of positivism around this implicit criticism
of Austin. He is still committed to the separation of law and morals, but tries to avoid Austin's
mistake of reducing obligations to non-moral habits, probabilities, harms and expressions.
Kelsen is still a positivist in that he agrees that law must be posits rather than derivations from
reason. The key evidence for this is that public law is flexible and dynamic in contrast to God's
law, which never changes. Natural law seems to imply that real law cannot change.17
However, Kelsen recognized that law must also have a normative base. Logically, he concludes,
there must be a basic norm on which law rests. However, it does not need to rest on
a moral norm. It is the prescriptive premise from which the obligation of law follows. Without
that basic norm, we can't get the legal "ought" from the sociological or historical "is." There has
to be such a norm or justification would never come to an end. Still, the normative grounding is
different from the norms of morality-Kelsen preserves the separation. This yields a more subtle
and defensible version of positive law.18
9
He calls that basic norm the logical constitution. It is the basic evaluative premise from which
the legitimacy or validity of all the laws derive. Laws can be created, but the basic norm
specifies how they can be created and changed. Only those created in accordance with the basic
norm will be valid laws. The notion of a valid law must be kept distinct from the notion of
a good law. Criticism of law is indeed a moral matter but a bad law may still be a valid law and
create a legal obligation.
One feature of Kelsen's separation is that he thought of the basic norm as purely procedural. It
specified how other laws could be made, but not what possible content they may have. If a law
followed from the procedure, it could have any content at all. Further, the basic norm, unlike
ordinary laws, does not follow from any other higher norm. It is not a component of God's
natural law. Kelsen wanted to avoid Austin's recourse to habit, but ends up facing a similar
problem and giving a more complex but still inadequate solution. The basic norm, he says, is an
accepted custom, or in Kelsen's full wording, "when the custom through which the constitution
has come into existence or the constitution-creating act consciously performed by certain human
beings, is objectively interpreted as a norm-creating fact. . ."19 then a basic norm exists. It is not
created or justified by that objective interpretation or widespread, interpersonal acceptance. The
acceptance comes in merely presupposing the norm. The basic norm is when the custom is
consciously interpreted as being a norm creating fact.
This leads Kelsen to an interesting doctrine of revolution. Revolution is when the basic norm is
changed by some procedure not specified in the basic norm.
The principle of legitimacy, Kelsen asserts, is limited by the principle of effectiveness. Some fact
of the matter determines what the legitimate government of a society is and what its laws are.
Validity is a matter of effectiveness only for the basic norm, however. If no one pays obeys the
subsequent laws, then the regime is plagued by lawlessness. But as long as the people accept that
they are laws. However, that situation is clearly a borderline one. Normally, people will be
guided by their recognition of an obligation to obey at least some of what they regard as valid
laws. So even widespread disobedience to other valid laws is consistent with the claim that they
are valid. The basic norm is still effective if the custom is objectively interpreted as validating or
legitimizing law-making actions.
10
POSITIVE MORALITY
The most influential criticisms of legal positivism all flow, in one way or another, from the
suspicion that it fails to give morality its due. A theory that insists on the facticity of law seems to
contribute little to our understanding that law has important functions in making human life go
well, that the rule of law is a prized ideal, and that the language and practice of law is highly
moralized. Accordingly, positivism's critics maintain that the most important features of law are
not to be found in its source-based character, but in law's capacity to advance the common good,
to secure human rights, or to govern with integrity. It is a curious fact about anti-positivist
theories that, while they all insist on the moral nature of law, without exception they take its
moral nature to be something good. The idea that law might of its very nature be morally
problematic does not seem to have occurred to them.20
21
It is beyond doubt that moral and political considerations bear on legal philosophy. As Finnis
says, the reasons we have for establishing, maintaining or reforming law include moral reasons,
and these reasons therefore shape our legal concepts. Once one concedes, as Finnis does, that the
existence and content of law can be identified without recourse to moral argument, and that
“human law is artefact and artifice; and not a conclusion from moral premises,” 22 Apart from
some confused claims about adjudication, Fuller has two main points. First, he thinks that it isn't
enough for a legal system to rest on customary social rules, since law could not guide behavior
without also being at least minimally clear, consistent, public, and prospective and so on that is,
without exhibiting to some degree those virtues collectively called the rule of law. It suffices to
note that this is perfectly consistent with law being source-based. Even if moral properties were
identical with, or supervened upon, these rule-of-law properties, they do so in virtue of their rule-
like character, and not their law-like character. Whatever virtues inhere in or follow from clear,
consistent, prospective, and open practices can be found not only in law but in all other social
practices with those features, including custom and positive morality. And these virtues are
minor: there is little to be said in favour of a clear, consistent, prospective, public and impartially
11
administered system of racial segregation. Fuller's second worry is that if law is a matter of fact,
then we are without an explanation of the duty to obey. One possibility he neglects is that it
doesn't. The fact that law claims to obligate is, of course, a different matter and is susceptible to
other explanations. But even if Fuller is right in his unargued assumption, the peculiar quality
whose existence he doubts is a familiar feature of many moral practices. While Finnis and
Fuller's views are thus compatible with the positivist thesis, the same cannot be said of Ronald
Dworkin's important works. Positivism's most significant critic rejects the theory on every
conceivable level. He denies that there can be any general theory of the existence and content of
law; he denies that local theories of particular legal systems can identify law without recourse to
its merits, and he rejects the whole institutional focus of positivism. 23
A theory of law is for Dworkin a theory of how cases ought to be decided and it begins, not with
an account of political organization, but with an abstract ideal regulating the conditions under
which governments may use coercive force over their subjects. Force must only be deployed, he
claims, in accordance with principles laid down in advance. A society has a legal system only
when, and to the extent that, it honors this ideal, and its law is the set of all considerations that
the courts of such a society would be morally justified in applying, whether or not those
considerations are determined by any source. To identify the law of a given society we must
engage in moral and political argument, for the law is whatever requirements are consistent with
an interpretation of its legal practices that shows them to be best justified in light of the
animating ideal. In addition to those philosophical considerations, Dworkin invokes two features
of the phenomenology of judging, as he sees it. He finds deep controversy among lawyers and
judges about how important cases should be decided, and he finds diversity in the considerations
that they hold relevant to deciding them. The controversy suggests to him that law cannot rest on
an official consensus, and the diversity suggests that there is no single social rule that validates
all relevant reasons, moral and non-moral, for judicial decisions.24
Dworkin's rich and complex arguments have attracted various lines of reply from positivists. One
response denies the relevance of the phenomenological claims. Controversy is a matter of
degree, and a consensus-defeating amount of it is not proved by the existence of adversarial
argument in the high courts, or indeed in any courts. As important is the broad range of settled
12
law that gives rise to few doubts and which guides social life outside the courtroom. As for the
diversity argument, so far from being a refutation of positivism, this is an entailment of it.
Positivism identifies law, not with all valid reasons for decision, but only with the source-based
subset of them. It is no part of the positivist claim that the rule of recognition tells us how to
decide cases, or even tells us all the relevant reasons for decision. Positivists accept that moral,
political or economic considerations are properly operative in some legal decisions, just as
linguistic or logical ones are. The authority of principles of logic (or morality) is not something
to be explained by legal philosophy; the authority of acts of Parliament must be; and accounting
for the difference is a central task of the philosophy of law.25
Other positivists respond differently to Dworkin's phenomenological points, accepting their

relevance but modifying the theory to accommodate them. So-called inclusive positivists. In
determining which remedies might be legally valid, judges are thus expressly told to take into
account their morality. And judges may develop a settled practice of doing this whether or not it
is required by any enactment; it may become customary practice in certain types of cases.
Reference to moral principles may also be implicit in the web of judge-made law, for instance in
the common law principle that no one should profit from his own wrongdoing. 26 Such moral
considerations, inclusivity claim, are part of the law because the sources make it so, and thus
Dworkin is right that the existence and content of law turns on its merits, and wrong only in his
explanation of this fact. Legal validity depends on morality, not because of the interpretative
consequences of some ideal about how the government may use force, but because that is one of
the things that may be customarily recognized as an ultimate determinant of legal validity. It is
the sources that make the merits relevant.27
Exclusive positivists offer three main arguments for stopping at social sources. The first and
most important is that it captures and systematizes distinctions we regularly make and that we
have good reason to continue to make. We assign blame and responsibility differently when we
think that a bad decision was mandated by the sources than we do when we think that it flowed
from a judge's exercise of moral or political judgment. When considering who should be
appointed to the judiciary, we are concerned not only with their acumen as jurists, but also with
26 Ibid. 25.
13
their morality and politics--and we take different things as evidence of these traits. These are
deeply entrenched distinctions, and there is no reason to abandon them.
The second reason for stopping at sources is that this is demonstrably consistent with key
features of law's role in practical reasoning. Although law does not necessarily have legitimate
authority, it lays claim to it, and can intelligibly do so only if it is the kind of thing
that could have legitimate authority. It may fail, therefore, in certain ways only, for example, by
being unjust, pointless, or ineffective. But law cannot fail to be a candidate authority, for it is
constituted in that role by our political practices. 28 Authorities' directives should be based on
such reasons, and they are justified only when compliance with the directives makes it more
likely that people will comply with the underlying reasons that apply to them. But they can
do that only if is possible to know what the directives require independent of appeal to those
underlying reasons. Consider an example. Suppose we agree to resolve a dispute by consensus,
but that after much discussion find ourselves in disagreement about whether some point is in fact
part of the consensus view. It will do nothing to say that we should adopt it if it is indeed
properly part of the consensus. On the other hand, we could agree to adopt it if it were endorsed
by a majority vote, for we could determine the outcome of a vote without appeal to our ideas
about what the consensus should be. Social sources can play this mediating role between persons
and ultimate reasons, and because the nature of law is partly determined by its role in giving
practical guidance, there is a theoretical reason for stopping at source-based considerations.29
CONCLUSION
There exist vastly differing views on the moral basis of sovereignty. A fundamental polarity is
between theories that assert that sovereignty is vested directly in the sovereigns by divine or
natural right and theories that assert it originates from the people. In the latter case there is a
further division into those that assert that the people transfer their sovereignty to the sovereign,
and those that assert that the people retain their sovereignty. Austin, belonged to the school of
Analytical positivism. Although his theory is been criticized by the present jurists he still laid the
28 Studies In Jurisprudence and Legal Theory. V.N. Paranjape, 8th edition, p 31

14
ground for debates and deliberations which are resulting in the selecting of the type of sovereign,
process of formulation of law, etc. And thus, calling him the “God of modern Jurisprudence” is
no injustice to the title.
BOOKS
 The Concept of law by H.L.A Hart.

 Understanding Jurisprudence: An Introduction to legal theory by Raymond Wacks.
 Pure theory of law by Han Kelson.
 Studies In Jurisprudence and Legal Theory by Dr. N. V. Paranjapae.
ONLINE DATABASE
 HeinOnline
 SCCOnline
 LexisNexis
15

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CONCEPT OF LEGAL SOVEREIGNTY, POSITIVE LAW AND POSITIVE MORALITY

MAHARASHTRA NATIONAL AW UNIVERSITY, NAGPUR

 To study the concept of legal sovereignty;

SCOPE AND LIMITATIONS

CHARACTERISTICS OF LEGAL SOVEREIGNTY

1. The legal sovereign is always definite and determinate.

5. Disobedience to the imperatives of the legal sovereign means physical punishment.

LEGAL SOVEREIGNTY AND POSITIVE SOVEREIGNTY

3 Jurisprudence by R W M Dias, 5th edition, p 10.

NATURAL LAW THEORY OF MORALITY

7 A Textbook of Jurisprudence by G.W. Paton, 4th edition, p 23.

Other positivists respond differently to Dworkin's phenomenological points, accepting their

28 Studies In Jurisprudence and Legal Theory. V.N. Paranjape, 8th edition, p 31

 The Concept of law by H.L.A Hart.

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