Province of Jurisprudence

Bound by the law of God

To obey their temporal sovereign.
A sovereign government has divine rights against:
Rights which are conferred upon itself, through duties which are laid upon
its subjects, by laws of a common superior.

Disquisition in right or rights which occurs in his Moral Philosophy,

Paley obviously wavers between the dissimilar meanings.
An adequate definition of a right or of rights 'as signifying faculty, we
definition of right, and also the respective meanings of many intricate
terms which are implied by the term to be denied.

And members of its own community are severally constrained to obey

it by the opinion of the community at large, it has moral rights

Party or Parties

German expositors of particular system

of Jurisprudence.

by virtue of as given law; and which avails against a party of parties (or
answers to a duty lying on a party or parties) other than the party or
parties in whom it resides. And the noun substantive rights is plural of
the noun substantive a right.
But the expression right, when it is used as an adjective, is equivalent to
the adjective just as the adverb rightly is equivalent to the adverb
justly. And when it is used as abstract name corresponding to the
adjective right, the noun substantive right is synonymous with the
noun substantive justice

They make two disparate objects of

RECHT as forming a genus or kind.
Divided in two species or two sorts.

For example:
I owe you a hundred pounds; you have a right to the payment of the
money: a right importing an obligation to pay money, which is incumbent
upon me. Now incase I make the payment to which you have a right I do
that which is right or just, or I do that which consist with right or justice.

Terms are confounded by many writers who attempt a definition of right

and their attempts to determine the meaning of that very perplexing
expression, are, therefore, sheer jargon.
By many of the Germen writers on the sciences of Law and morality (as
Kant, for example in his Metaphysical Principles of Juris prudence,
right in the one sense is blended with right in from positive
orality) against its own subject severally considered:
Rights which are conferred upon itself by the opinion of the
community at large, and which answer to relative duties laid upon
its several subjects by the general or prevalent opinion of the
same indeterminate body.

1.
2.

RECHT equivalent to LAW.

RECHT equivalent to RIGHT as meaning FACULTY.

They thicken the mess which that confusion produces, with a

misapplication of terms borrowed from the Kantian Philosophy.

If they like the government, they are determined to obey it habitually

or to consent to its continuance, by their special inclination or
attachment.
If they hate the government they are determined to obey it habitually
or consent to its continuance by their dread of a violent revolution.

Sovereign Government
A Sovereign Government of one, or a Sovereign Government of a
number in its collegiate and sovereign capacity, may appear in the
character of defendant, before a tribunal of its own appointment, or
deriving jurisdiction from itself. But from such an appearance of a
sovereign government, we cannot infer that the government lies under
legal duties, or has legal rights against its own subjects.

As weigh against Miguel and Ferdinand, Trajan and Aurelius, or Frederic and
Joseph, were fools and malignant tyrants. And as ignorant people people
may love their established government, though it positively crosses the
purpose for which it ought to exist, so may ignorant people hate their
established government, though it labours strenuously and wisely to
further the general weal. The dislike of the French people to the ministry of
the godlike Turgot amply evinces the melancholy truth. They stupidly
thwarted the measures of their warmest and wisest friend, and made
common cause with his and their enemies with the rabble of nobles and
priest who stove to uphold misrule, and to crush the reforming ministry
with a load of calumny and ridicule.

The religious duties of the subjects towards the sovereign government are
creatures of the Divine law as known through the principle of utility.
The duties of the sovereign government towards the subjects are partly
religious and partly moral.

If they lay under legal duties towards the subjects, it was not a supreme,
but merely a subordinate government.
Its religious duties towards the subjects, are creatures of the Divine law as
known through the principle of utility, to advance as far as is possible the
weal of mankind.

Since, then, a government continues through the obedience of the people

and since the obedience of the people is voluntary or free, every
government continues through the consent of the people, or bulk of the
political society.

The sovereign in present usage is therefore that person body

which is the supreme legislator in a given community.

SOVEREIGN SUPREME
LEGISLATOR OWES ITS ORIGIN TO
THREE MAIN HISTORICAL
SOURCES.
1.

ROMAN EMPEROR, whose will, in the language found in Justinians

Institute, had the force of law. Influence of Roman Law on the
development of Western Law.

2. During Dark Ages which followed the fall of the Roman Empire, and
succeeding age of feudalism, the papacy secured the office both in
form and, to considerable extent, in substance of a supreme legislator
for all Christendom
3. Middle Age the most important source of modern concept of
sovereignty.
This was the rise of independent nation-states which all
through the latter Middle Age had been struggling to shake off the
relics both feudalism and of papal supremacy.

LAW SOVEREIGNTY AND THE

STATES
THE ORIGIN OF THE IDEA OF SOVEREIGNTY
SOVEREIGNTY, as it understood today, implies a good deal more than the
notion of a supreme ruler.
An absolute monarch, a Haroun-al-Rashid, for instance, may have
unfettered power to govern and order heads to be struck off but yet lack
legal power to alter, save in points of detail, the established law of the
community.
The modern idea of sovereignty on the other hand is associated rather
with the supreme power of law-making than with the supreme executive or
judicial authority to embark on war, impose death sentences, govern the
country in its day-to-day affairs, and act as a final tribunal for settling
disputes between subjects.

2 Distinct aspects of Sovereignty

1.

Internal Aspects which has just been considered is that of the

supreme domestic legislator.

2. External Aspects on the other hand, the position is very much

more like that of the absolute monarch under a customary system
of law, who claims not so much power to change the law, as total
freedom of action to act as his will or desire may direct.

LAW AS THE
COMMAND OF A SOVEREIGN
it aims of positivist --- to establish the autonomy of law as a
system of positive norms whose validity can be determined within
the framework of the legal system itself, without recourse to any
other system, whether religion, morality, or anything else.

B E N T H A M -- A U S T I N

Both command Sovereignty was not to be derived from legal rules

investing some body or person with supreme power but based on
the sociology fact of power itself.

COMMANDTHEORY

Obedience acknowledged to the another outside authority would mean

that the society was not an independent state at all but merely a
subordinate part of some other state; and absence of a supreme power a
supreme power within the state meant nothing less than confusion and
anarchy, the antithesis of legality.

- Austin
The command theory really amounts to saying that the LAW is
what sovereign commands, and that, on the other hand, nothing
can be law which is not commanded by sovereign.

MAX WEBER
Argue that such circularity is really a deliberate feature of the
system, enabling legitimacy to be preserved without recourse to
value judgment.

John Austin (legal philosopher)

JUSTICE H O L M E S

He saw the problem of sovereignty not just in

terms of

Life of the law is not logic but experience.

locating the supreme legal authority in the state

but as one
of

WHO IS THE SOVEREIGN?

the

source

of

determining
ultimate power.

AUSTIN THEORY

Sovereignty was not to be derived from legal rules investing

some body or person with supreme power but based on the
sociology fact of power itself.
EXPLANATORY: For Austin this was the essential mark of an independent
state (or political society as he called it).

Adopting an
already
adumbrated
Bentham.

approach
by

- He interpreted sovereignty as meaning

the power in the state which commanded
habitual obedience and which did
not
yield habitual to any other
power.

What would happen if the sovereignty

was divided into two?

For Austin claims that all so

called constitutional
LAWS 'dealing with
the structure of the
sovereign power are
not really legal
because who is
sovereign is ultimately to
be determined by the fact
of obedience.

LAW AND SOCIETY