The invisible origin of legal language

thegrundnorm

pp. 171-200

in: William E. Conklin, The invisible origins of legal positivism, Berlin, Springer, 2001

Abstract

The dominant strain of the Tradition, so far examined, has associated the authorizing origin of humanly posited laws with an author. The Tradition has offered two senses of an author. The first, associated with Hobbes and Rousseau, considered the author as the invisible creator of the institutional structure of civil society. The second, best manifested in the works of Austin and Bentham, considered the author as historically contingent. During his early and middle period, Bentham believed the legislature to be the sovereign historical author; Austin believed that the people authored the structure of legal institutions. I have emphasized in the previous chapter that, for Bentham and Austin, officials recognize the historical authors to be situated internal to the legal structure.