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    Abry Anthraper
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    Hart Ch 4

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    6 views15 pages

    Hart CH 4

    Uploaded by

    Abry Anthraper

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
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    of 15
    IV SOVEREIGN AND SUBJECT 1 cttizing the simple model of law as coercive orders we have 10 far Taied 0 questions concerning the “overcign {o this conception the law of any society. Indeed in deat ing the adequacy of the dea of as order baced by treats as tn account of te diferent varices of Law, we provisionally assumed that in any society where there am, there actualy isa sovereign, characered airmatiely and mega by Teerence tte ht of abedlencr persone ed a per Sons whote orders the great majority ofthe society haba ey and who docs nat haaly bey myer person oF ‘We must now consider in some detail this general theory concerning the foundations of al egal systema tov spite of Ssveareme simplicity the doctrine of sovereignty i asthing les than this, The dotrne asseris that in every human 80 City, where there lw there itl o be fund latent euch the variety of potas ins eocray as much shin an absolute monarchy thi spl elatonshp beeween tubjecs rendering habitual obedience and a sverige whe Fenders bal shedence to noone, Thi etl seucare ompered of overcgn and sbjets i according to he theory. semen a porto soit which pore wy aback Bone of aman. Where it i preset we may speak ofthe society, together with ts aoverign, as 2 singe independent Bate, ad we my speak ofa awe where it nox preter oe an apply none of these expressions for the slation a ober eign ad abject rma, aceadingw hs theory, pa of he very meaning To pin in ths ncne a of pes pranee and we shal emphasize them here in general terms in otdet to Indicate the ins oferta pursued in detain the rst ot the chapter. The frst concert the sea ofa ha of oe fence which i all that in seguted we prt of thove to ‘whom the sovereign’s laws apply. Here we shall inquire Uhether such sats sulficient to account fr to salient Tarte of nat logal system: the colin fd atv (0 Tike [a -potsessed-by-a succession of dierent legislators, Ui the povsimr of law long after their maker and Oise Spe renered his habitual obedience have persheds Our cond pon concerns the position occupied bythe sovereign Shove the laws he creates aw for others and 30 imposes legal ut or “bmiations" upon them whereas he ls aad hinge to be legally unlimited snd limita, Hezene aba equi wheter this legally Uimitable stains he supeeme lager [rnccesnry fr the existence of law, and whether ether the Bresence OF tHE ence of legal limits on legilatve power Eatrhe understood inthe simp term of habit and obedience {nto which this theory salves these notions The idea of obedience, like many other apparently simple eas used without seratiny, i not ee fom complexes. We Shall dsegard che complet sreay noticed? tha the word ‘bcdience often suggests dteence to authority and not anerly compliance with orders backed by threats. Evens, i there mst be between the giving ofthe ordet and the per oruance of the specified actin onder thatthe Inter should onsite obedince: What, for example sth relevance af the fact when iis fact that the petzon ordered would ‘erainly have done the very same thing without ay order? ‘These dificalies sre particularly acute inthe cage of Tas, some of which prohibit peopl rom doing things which many Of them would ever think of doing Ti these dieu are Stcled the whole tea of a general habit of obedience’ tothe however, for our present purposes imagine avery simple cae {o which the words habit and obedience’ would perp be canceled to have fry obvious application SOVEREIGN AND SUBJECT We shall suppose that there is & population living in a teetony i wick a sists mona (kes) rege 9 ‘cy log ine: he controls his peopl by general ores backed by treats requiring then todo various things which they Wonk not otherwise do, and (© bata ftom dng tinge Se hey ol re uh ew ten the early years ofthe regu, things Rave log since ete down and in general, the people can be rléd on to obey him. Since what Rex requires noenonerow, and the temp ton dicey andi he panther Sera isharaly to be supposed thatthe obedience, thoogh generally dered, Bebe or tabitea ihe fal see er mat Sal sen of that word, Men can inde quite berally acquire the habit f comping with certain laws: driving on the ee Ihand side af the Fond perhaps a paraig, for Englhmen, of sch an acquired hab But where the aw runs counter © Strong inclinations as, for example, do laws requiring the payment of tater, our eventual compliance wit em’ even hough regular, has not the unrflece, cts, engrained ‘character of a habit. None the les, though the obedience accarded to Rex wil often Ick this clement of habit wil fave ote pete onc To ay of pon that he hae abit eg of eadng «newspaper at breafag, entails that he I Torte omer tng pat sone an sha be key to tepals behaviour, Ifo, wil be true of most ‘people in our imagined community, at anytime afer the Inital prod of rouble, that they have generally beyed the orders of Rex ana likely to connie to do 20 Tis to be noted that om this account ofthe soca situation SOVEREION AND suqyECr fa 40 long a8 obedience i regulaty forthcoming, 0 one in the ommity need have or exprest any views sto whether ‘own o others obedience to Rex isin any sce ight ope oF legitimately demanded. Plainly, the society he hice oe scribed, inorder to give as itera applicaons ae poly the notion of habit of obedience, is vey anne one hg probably far oo simple eer to have existed sehng, vad iC ecrtaialy nota primitive one; for prmitne soe Rasa Tule of absoite rulers lke Rex ant its memes a met unually concerned merely to obey bur have pronanced ve, a othe rightnes of obedience on the pat ofall conor None the les the community under Rex has exsiay sence af the important marks ofa society governed by nw ee during the litime of Rex. It has even a certain uni, co ie may be called‘ tate This unity is constituted bythe ek that its members obey ibe sume person, even thovgh they may have no views as tothe rghtnes of Joig ne, Let us now suppose that, after scene eign; Rex dee leaving a son Rex Il wh then start to naue general Sedo The mere fc tht there was a general abie SFobedicne to ex Tin his lifetime doesnot by itself even sender poeble that Rex Il wil be habitually obeyed, Hence if eters othing more fo goon than the fact of obedience to Rex I sod the likelihood that he woall contin to be aby, we aha sot be able to say of Rex I's fiat order, as we could hee s3id of Rex I's lat order, that it was given by one who ee sovereign and was therelore law. There is yet 90 eo, lished habit of obedience to Rex I We shall have ue ad sce whether such obedience wll Be accorded to Res I as eas to his ater, beore we can say actordanes {he theory, that he s nov sovereign and his orders are ae There nothing to make hi sovercign fom the sae Only afer we know that his orders have been obeyed fr sone Roe Shall we be able to say thats habit of obedience has bene ‘GUTEREA. The, bu not til then, we ball be able toy ot any ister order that ii slready low as soon as ace and before it is obeyed, Tillthi stage i reached there wil fe an Sntrregnam in which bo law can Be male ‘Such tte ofafirsis f course possible ad has occasion- ally beet ealined in toubled times but the anges che ontinuty are obvious and not usually courted Tasteas AND suajecr Characteristic of a legal sytem, even in an absolute mom Shy, to secute the uninterrupted consist of tweaking ct by rules which bridget ranean fram one Langit {o'anothr hes gla the tctesson adn, nang oF Speiying in general terms the qualiations efand mode

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