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Eleftheriadis on Austin on Sovereignty

By Lawrence Solum

Pavlos Eleftheriadis (University of Oxford - Faculty of Law) has posted Austin and the Electors on SSRN. Here is the abstract:

Austin's theory of theory of law is simple. The law follows the pattern of power: the sovereign gives commands and obeys none; the subject obeys commands; the law consists in only those commands that directly or indirectly emanate from the sovereign. Nevertheless, Austin's theory of sovereignty is not simple at all. When we look at the relevant chapters closely, it becomes evident that Austin has two rival theories of sovereignty, one for a single person and one for a 'determinate body'. It is only the latter that allows him to say that sovereignty lies, ultimately, with the electors, the strange conclusion of Province of Jurisprudence Determined. But Austin's second theory of sovereignty is inconsistent of the simple theory of law. Austin's faces a dilemma here that any 'empiricist' theory of law has to deal with. Is law - as most people take it to be - a public order of standards of conduct aiming to guide behaviour? If so, 'sovereignty' ought to be public and intelligible. If not, sovereignty can remain a mystery to those living under it (accessible only after the event by the expert legal philosopher). For the latter reading, law and sovereignty are 'normatively inert,' as some of Austin's followers claim today. But Austin does not agree with his modern followers. Austin's second theory of sovereignty is aimed at satisfying a practical requirement of law and jurisprudence, i.e. to be in the position of publicly guiding conduct.

Full post as published by Legal Theory Blog on June 11, 2010 (boomark / email).