The Dialectic of Sovereignty and Law: Hart’s Critique of Austin’s Command Theory

This study explores H. L. A. Hart’s critique of the concept of sovereignty as presented in John Austin’s legal theory. Austin’s theory posits that law is a command of the sovereign, who is the person habitually obeyed by the majority of a society, and who does not habitually obey any other person. The study highlights the theoretical and legal arguments put forward to refute this thesis. First, it demonstrates Austin’s inability to address two fundamental aspects present in various legal systems: the continuity of legislative authority and the persistence of laws. Austin’s theory fails to explain the continuity of the legal system and justify how law survives after the death of the sovereign, as well as to establish the normativity of law. Second, it demonstrates the difficulty of proving the absence of legal limitations on the sovereign due to the complexities inherent in legal systems. It also emphasizes the contradiction between popular sovereignty and the foundations of Austin’s theory. These issues led Hart to reject the principle of sovereignty entirely, replacing it with his theory of primary and secondary rules.