Sovereignty and validity

on the relation between the concepts and the role of acceptance

Antonia Waltermann

pp. 203-220

in: Pauline Westerman, Jaap Hage, Stephan Kirste, Anne R. Mackor (eds), Legal validity and soft law, Berlin, Springer, 2018

Abstract

Austin defined law as the commands of a sovereign. This paper investigates the relation between the concept of sovereignty and legal validity, departing from Austin's jurisprudence by distinguishing between constitutive and constituted sovereignty. The aim of this paper is not to prescribe one particular understanding of law, sovereignty, or validity. Rather, it is to investigate what implications one particular understanding of sovereignty has for our understanding of law and validity. Accordingly, this paper posits that a focus on popular sovereignty, which is constitutive, does not cohere well with certain understandings of legal validity, namely validity from pedigree and validity from reason. The understanding of validity that fits best with a focus on popular sovereignty is from acceptance, and a further distinction can be made in this regard with acceptance of an institutional system of law and acceptance of individual rules.