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THE CONCEPT OF LAW-CH IV-

“SOVEREIGN AND SUBJECT”
In this chapter H.L.A. Hart continues his attempt to rid us of the influence of the orders
backed by threats model by critically examining the sovereign as presented by the OBT
model and the habit of obedience of the subjects. Hart believes that the OBT model asserts
that “there is ultimately to be found latent beneath the variety of political forms, in a
democracy as much as in an absolute monarchy, this simple relationship between subjects
rendering habitual obedience and a sovereign who renders habitual obedience to no one.”
Hart dwells into whether the idea of a habit is sufficient to account for 1) the continuity of
the law and 2) the persistence of the law. Secondly he considers the limitations on the
Sovereign and whether it is important for the Sovereign needs to be legally illimitable.
Finally he considers whether the presence or absence of limitations on the Sovereign can
be adequately dealt with by the terms ‘habit’ and ‘obedience’. We shall consider each of
these aspects.

The habit of obedience and the continuity of the law:

To explain this theory Hart uses the hypothetical example of Rex, an absolute monarch
who controls his people by orders backed by threats and after some initial trouble things
are settled and generally, people can be relied to obey him. Further, Rex’s commands are
usually onerous.

Hart fells that if the orders of the monarch like Rex are onerous, the temptation to disobey
and risk punishment is very great, and in such a situation one can hardly call people
following Rex’s orders to be in a habit of obedience. Here, think about the inclination of
people to avoid paying taxes. Thus, the act of paying taxes cannot be said to have the
“unreflective, effortless, engrained character of a habit.” Hart does not however deny that
men can get in a habit to follow the law, for example, driving on the left hand side of the
road.

But the idea of habit may entail some action that someone has been doing regularly over a
long period of time. Walking everyday might be difficult for people but they might have
done so for so long that we could easily say that X is in a habit of going for a walk
everyday.

Hart feels that on this model, the habit of obedience is a personal relationship between
Rex and the population. Consider whether simply convergent behavior of the population
like going to a café every Saturday or to the Clifton beach every Sunday constitute a habit
and whether this habit is similar to the habit of obeying Rex? Hart asserts that in the
simple situation of Rex, “all that is required from the community to constitute Rex the
sovereign are the personal acts of obedience.” If we are to believe that such a simple
society ever existed, it is too simple to explain our modern societies. The model set by
MOIZ AHMED.
BARRISTER-AT-LAW
ADVOCATE HIGH COURT.
M.A. (INT’L RELATIONS)
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Rex’s society, however, has some important marks of a society governed by law, and even
has a certain unity in all the people following one ruler, at least during Rex’s lifetime.

The main problem starts for Hart, when the onerous ruler dies and is succeeded by
another monarch. The people who followed the earlier monarch habitually cannot be said
to be habitually following the new monarch now. Hence, if the society is not in a habit of
obeying the new monarch, what do we make of the first order passed by him? Will we
have to wait for the habit to be established to call the new monarch sovereign? Can there
be no law made until this stage is reached?

A legal system has concepts imbued in it that cover expressions like ‘right to make law’
and ‘rule of succession’ whereas these seem to be ill-suited for the notion of habit. This
situation is covered by legal rules that govern a society governed by law. For these rights
can only work in a society governed by habits if the society is in a habit to follow any new
ruler by virtue of some general social practice which is more complex than any that can be
described in terms of habit of obedience.

To deal with this issue we need to consider how rules and habits differ. First consider
social rules, how do they differ from habits? There is one point of similarity; in both cases
the behavior in question must be general. But there are three salient differences;

1) For the group to have a habit it is necessary that their behavior in fact converges, the
deviance from which might attract criticism, like not taking your shoes off while entering
a mosque, but this convergence is not enough to constitute a rule requiring that behavior.
However, where there is such a rule “deviations are generally regarded as lapses or faults
open to criticism.”

2) Where such rules are present, criticism for deviation is accepted as a good reason for
such criticism.

3) Rules have an internal aspect while with habits there is only the fact of generality of the
observable behavior of the group. For a social rule to exist some must at least look upon
the behavior as the general standard of behavior. Hart gives us the example of the game of
chess. Chess players do not merely move the Queen in a similar pattern which an external
observer could record without the knowledge of the rules of chess. They have a reflective
critical attitude to this pattern of behavior.

There is no doubt that even with habits, there might be present psychological experiences
analogous to those of restriction and compulsion, “but such feelings are neither necessary
nor sufficient for the existence of binding rules.” What is required is the reflective critical
attitude which is to find their expression in terms like ‘ought’, ‘must’, ‘should’, ‘right’ and
‘wrong’.

MOIZ AHMED.
BARRISTER-AT-LAW
ADVOCATE HIGH COURT.
M.A. (INT’L RELATIONS)
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To understand how rules explain the continuity of legislative authority, we need only
notice that even before the new sovereign has begun to legislate there are rules in place
give in him or a class of persons authority to do so. The right to be obeyed is also
governed by rules giving the sovereign this right. However, acceptance of a given rule by
a society at one moment does not guarantee its continued existence, for example when
there is a revolution there might be intermediate confused stages where one cannot be
sure whether a rule is faced with temporary interruption or whether it is permanently
abolished. But in principal, the matter is clear to Hart.

The persistence of Law

A statute enacted centuries ago may still be law today. But this scheme of things cannot be
conceived by the model of law as orders backed by threats by a person habitually obeyed.
So the question arises how could legislation still be valid today that was passed by
another legislator centuries ago? After all we cannot limit the view we hold of laws for the
lifetime of their makers only. The answer to this question is similar that of the previous
question of why law already. It is constituted in the notion of the currently accepted
fundamental rules specifying a class of persons whose word is to constitute a standard of
behavior for the society. For Hart it is not possible to dispense with the complex system of
rules governing the persistence of laws with the simple notion of habit of obedience to the
present sovereign.

Then there is the idea forwarded by Bentham in the Leviathan, in Chapter XXVI, that ‘the
legislator is he, not by whose authority the laws were first made but by whose authority
they now continue to be laws’. This denotes the concept of the tacit expression of he
sovereign’s will. Recall the criticisms already discussed in the previous lecture against this
concept. Further, there is little doubt about the validity of the law made by a past
sovereign until actually applied by the courts during the tenure of the present sovereign.

Note: Also consider the stance taken by Legal Realists on the validity and persistence of
law and Harts comments on it.

[Consider the Witchcraft Act 1735 and the modern day British and French societies]

Legal Limitations on the Sovereign

The doctrine of the general habit of obedience does not ascribe any such habit of
obedience to the sovereign who makes laws for the subjects outside the framework of law.
The theory assumes that the sovereign is legally illimitable and that in every society
where there is law there has to be a sovereign. However, there may be other limitations on
him. “The law courts, in considering whether they have before them a law of the

MOIZ AHMED.
BARRISTER-AT-LAW
ADVOCATE HIGH COURT.
M.A. (INT’L RELATIONS)
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Sovereign would not listen to the argument that its divergence from the requirements of
popular opinion or morality prevented it from ranking as law.”

This theory provides us with two things; first, it allows us to identify law as being the
command of the Sovereign as distinct from other rules, principles, standards, morals or
customs. Secondly, it allows identification of whether we are “within the area of law we
can determine whether we are confronted with an independent legal system or merely a
subordinate part of some wider system.”

Hart states that in many modern states even the most supreme legislature within a system
is not legally illimitable. A written constitution may restrict the competence of the
legislature “not merely by specifying the form and manner of legislation (which we may
allow not to be limitations) but by excluding altogether certain matters from the scope of
its legislative competence.” [Shariah Law?]

One might be able to state with some confidence that the Sovereign cannot pass laws that
allow for imprisonment without trial. This idea of ‘cannot’ for the Sovereign is
‘illuminating’ as it signifies that a person is under a legal obligation to refrain from doing
something. It imposes legal disabilities on the Sovereign. [You should consider Terrorism
Laws passed after 9/11, can we say that this notion of being limited legally hold true in
light with statutes like the Patriot Act?]

These restrictions are not merely conventions or moral matters with which the courts are
not concerned with. “They are parts of the rule conferring authority to legislate and they
vitally concern the courts.” These rules are used by the courts as the criterion for checking
the validity of the orders of the Sovereign. Further, these restrictions even though legal,
not merely moral or conventional, cannot be expressed as a habit of obedience to the
Sovereign. If the Sovereign actually makes such law then he cannot be said to be breaking
any law or violating a legal duty but he would have failed to make a valid law.

Conversely, the fact that Sovereign A in a state follows Sovereign B of another state
habitually, will not deprive legislation passed by the Sovereign A of its status as law nor
will it make the law passed by A subordinate in Sovereign B’s state.

This means that to understand the foundation of a legal system we need to understand the
following:

1. Legal limitations consist not of duties imposed on the legislature but of disabilities
contained in the rules qualifying him to legislate.
2. To establish an enactment as law we have to show that it was made under an
existing rule and that there are no restrictions in the rule affecting this enactment.
3. To display an independent legal system, all that is to be shown is that “the rules
which qualify the legislator do not confer superior authority on those who have
also authority over other territory.”
MOIZ AHMED.
BARRISTER-AT-LAW
ADVOCATE HIGH COURT.
M.A. (INT’L RELATIONS)
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4. We have to distinguish between a legally unlimited legislative authority and one

which, though limited, is supreme in the system.
5. The legislator’s habits of obedience are only of indirect evidential importance. The
only relevance of the Sovereign not being in a habit of obedience is that it may at
times render evidence that the Sovereign’s authority to legislate is not subordinate,
by constitutional or legal rules, to that of others or the only relevance of him
habitually obeying someone is that it is evidence that “under the rules his authority
to legislate is subordinate to that of the others.”

The Sovereign behind the Legislature

It is accepted that there might be legal limitations controlling the exercise of discretion to
legislate of the Supreme legislature but both lawyer and legal theorists would agree that
such enactments are law. If we are to insist that the Sovereign has to be someone
absolutely legally illimitable, we will need to search beyond this structure for such a
Sovereign.

Hart gives us various examples of states governed by the constitutions where the courts
have taken action to declare enactments by the legislature as ultra-vires or void. Here he
cites the examples of South Africa and the Fifth Amendment of the constitution of the
United States of America. He then states that there are also many devices protecting this
constitution from the operations of the legislature like those provisions concerning rights
and liberties. In other situations such provisions are only considered ‘merely political’ or
hortatory. There are also provisions in the U.S. constitution that are considered political,
there the courts avoid considering whether such act violates the constitution.

According to one reading of Hart, Austin’s model focused on the electorate as the
Sovereign i.e. ‘not its ordinary legislature but the body of citizens which appoints its
ordinary legislature. He states that in England at least such a view is not plausible as the
electorate, by voting, only create a bond of trust with the legislature and is only a matter
of moral sanctions. However, Hart states that in the U.S., the electorate may be called the
‘extraordinary and ulterior legislator’. Here too Hart again questions whether this
‘extraordinary and ulterior legislator’ is actually without ‘legal limitations’. He states
further that even if this were proved to be adequate, then also we are really stretching the
‘habit of obedience’ theory. [A very detailed discussion available in The Concept of Law at
pgs. 75-76].

He says to qualify the electorate as the Sovereign a distinction has to be made between the
members of the Society in their private capacity and their official capacity as electors or
legislators. Here also however, this distinction can only be drawn based on some rule
allowing this to be done. “Since they are rules defining what the members of the society
must do to function as an electorate (and so for the purposes of the theory as a Sovereign)
they cannot themselves have the status of orders issued by the Sovereign, for nothing can

MOIZ AHMED.
BARRISTER-AT-LAW
ADVOCATE HIGH COURT.
M.A. (INT’L RELATIONS)
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count as orders issued by the sovereign unless the rules already exist and have been
followed.”

Hart says that the above mentioned and other criticisms of the theory are fundamental
because the simple ideas of orders, habits, and obedience, cannot be adequate for the
analysis of law. “What is required instead is the notion of a rule conferring powers, which
may be limited or unlimited, on persons qualified in certain ways to legislate by
complying with a certain procedure.”

Other criticisms are:

1. If the electorate is to be regarded the sovereign, ‘we may well ask, even where the
Sovereign has unlimited amending power by which the restrictions on the ordinary
legislature could all be removed” can we say that the electorate has been properly
represented in making this command, we then return to the concept of tacit
approval. The criticism made earlier of the tacit command theory apply here with
greater force and a failure by the electorate to exercise this power might be a poor
reflection of its will.
2. What do we make of rules placing restrictions on the electorate’s amending power
i.e. the legal limitations?
3. Can the failure of society to revolt against legal limitations be called their tacit
approval?
4. The idea of the electorate as the Sovereign is only perceivable where there is a
democracy. What becomes in an absolute monarchy like that of Rex’s?

Now remember, this is only what Hart says, while doing your scripts, you do need to
know these arguments thoroughly and put them on paper but nothing should stop you
from critically examining these arguments. You should actually go on and develop your
own ideas and find support from other jurist’s works.

MOIZ AHMED.
BARRISTER-AT-LAW
ADVOCATE HIGH COURT.
M.A. (INT’L RELATIONS)