Austin
Sovereign – people are accustomed to it, and its orders are obliging, they obey it. It can be a collective body / person / whatever; It is a factual position, factual attribute.
Distinguished sovereign de iure and de facto:
de iure – someone is defined as sovereign by law;
de facto – factual sovereign; someone considered one.
Sometimes these two entities are the same. That’s when it’s a real sovereign.
It must be a relatively permanent and stable state. It has to last for some time. People have to be accustomed to obeying sovereign orders.
Sovereign is incapable of legal limitation.
Result of definition:
Sovereign can regulate any issue/problem/question in any way he pleases: It can issue unjust law and it’s still law.
Sovereign can change any law
There is no one entitled to declare sovereign’s order illegal or unconstitutional, because there is no one standing higher than sovereign. If there is someone higher, by definition THIS is the sovereign. THIS IS SPARTA.
Sovereign is not bound by existing law. He stands above the legal system. Because there is no one who holds sovereign responsible for violation of legal system.
There is no rule of law in Austin’s philosophy, because government is not bound by law. Only remedy against unjust law can be in pactual socials, not in legal socials. Sovereign can be killed etc. or a revolution can be made. Resist him and overthrow. It’s a factual remedy.
Every sovereign is a potential legal despot.
Every legal rule is an order of sovereign. Order in a context of common law – custom and legal precedence play an important role and Austin says that also legal customs and judicial decisions are also a creation of sovereign.
Precedence become law only if sovereign wishes them to become law.
Sovereign can express in 2 ways:
Expressis verbis (expressly)
Implicit (tacit acceptance) – he who is silent agrees
Sovereign may accept law is he does not oppose them. It’s still his decision.
Concept of priority of statute over customs and judicial precedence.
Georg Jellinek
Political theory:
State – leads a double existence. It is a complex phenomenon. It has both objective side and subjective side. From objective standpoint every state is a physical being/entity. It possesses certain natural resources (coal, oil etc.), borders, economy, population, history, administration. If one wants to investigate it, one applies records of such sciences as mathematics, economics, statistics, history, geography, geology, administration etc.
Subjective side is nothing but law, legal system. In order to get to know it one applies legal science.
Legal science consists of two categories:
interpretation of law, construction of law – that’s what’s done during normal courses; reading legal rules and finding their meaning.
Investigation of the relationship between legal rules and reality - why law looks like it does in a legal system, investigation of impact of law upon reality and the other way.
In order to get to know a political system completely, both of these categories must be used (subjective and objective investigations); can’t rely exclusively on legal system or reality.
What a state needs to exist:
3 connected elements:
Territory – certain exceptions in history to this rule (polish government on exile). Generally every state has to posses a territory.
Population – it is needed for a state to exist; every state needs citizens. Not in material sense, but this population has to be connected to the government/state by legal bond. The bond has to be exclusive.
Independent Political Authority – legitimized by inside factors, not by outside states. For example state of California is not a state because its authority comes from the constitution not by its own authority.
According to Jelinek in order for a state to exist these elements have to be connected to one another in a certain way. There has to be some connection between citizens and authorities. What is this unified factor? What do they have to have in common?
Jelinek distinguishes 4 levels of unity:
Mechanical unity (time-and-space unity) – at this level of unity only thing they have in common is being at the same place in the same time. It is not enough, the bond has to be stronger.
Causatory unity – people are united by common past, by common history, customs (like memory of world war two, Christmas traditions, baptism memories, etc.), tradition. They are different than other countries traditions and memories. Still not enough really
Formal unity - people are united by allegiance or loyalty to common institutions.
Teleological unity – people are united by common purpose, objectives. Very difficult level to reach. State exists only if people want it to exist, only if they find it valuable, worth protecting AND DYING FOR IT.
It starts in our heads. Existence of state depends upon our psychological attitude towards it.
Jelinek is trying to tell us that without the feeling of allegiance and loyalty there is no difference between slavery and taxation for example. It’s all about psychology. Treat the state as something else than criminals.