The Persistence of Sovereignty and the Rise of the Legal Subject

Abstract

Several states have considered bills aimed at preventing courts from enforcing, considering, or relying on both religious and international law. This legislative pushback on international and religious law reflects a concerted effort to consolidate legal authority by asserting the state as the only source of legitimate law. As the core of this controversy stands an age-old philosophical dispute over the relationship between sovereignty and law: Does state sovereignty preclude the possibility of law both above the state – that is, international law – and below the state – that is, religious and customary law? This tension tracks a long-standing fissure within legal positivism. In this chapter, Professor Helfand considers the works of two early positivists – Thomas Hobbes and John Austin, who understood the concept of law as inextricably linked to the notion of sovereignty. In his seminal work The Concept of Law, H.L.A. Hart responded to this theory, decoupling the link between law and sovereignty. Hart believed law could exist even in the absence of a legal system, allowing for the possibility of a form of legal pluralism. Helfand elaborates on this possibility of law without a legal system, emphasizing the importance of the distinction for understanding the dilemmas of the legal subject.