The Demise Of The Concept Of Sovereign:from Thomas Hobbes To H.L.A Hart

For hundreds of years since Jean Bodin put forward the concept of sovereignty,the academic circle has been discussing sovereignty and the concept of sovereign for a long time.The concept of sovereign has become an important concept in politics and law.However,the discussion of the concept of sovereign power in this paper is limited to the meaning of legal positivism.Deeply influenced by Thomas Hobbes,Jeremy Bentham and John Austin,was on the basis of the sovereign’s concept to construct the initial theory of law positivism form-“Command Theory of Law,” however,this theory was criticized and abandoned by Hans Kelsen,H.L.A Hart and other scholars in the middle of the 20 th century.Finally,the concept of sovereignty was replaced by new concepts such as “Basic Norms” and “the Rule of Recognition”.The main purpose of this paper is to explain the reasons and process of the change of the concept of sovereignty,so as to reflect the theoretical change process of legal positivism.Therefore,this paper reveals the origin,establishment and dissolution of the concept of sovereignty from the perspective of history.This paper mainly consists of four parts.The first chapter attempts to clarify the etymology,theoretical and practical origin of the concept of sovereignty,and define the characteristics of the concept of sovereignty in the sense of legal positivism.The concept of sovereignty originally has the connotation of "supreme power".It takes the struggle between the church and the monarch around "supreme power" as its practical and theoretical origin,and takes internality,utilitarianism and positivism as the legal positivism characteristics of the concept of sovereignty.The second chapter is to explain the origin of the concept of legal positivist sovereign.The humanistic movements such as the Renaissance,religious reform and the progress of natural science have created Thomas Hobbes’ s "Leviathan" theory.I think this theory has long contained the theoretical factors of legal positivism,which have also become the basic conditions for Jeremy Bentham and John Austin to construct the “ Command Theory of Law ”.The third chapter expounds the establishment of the traditional concept of legal positivist sovereignty,which is marked by the theoretical establishment of Bentham and Austin.The British Enlightenment gave birth to the tradition of empiricism and utilitarianism.On the basis of the two traditions,Bentham and Austin constructed the “Command Theory of Law” respectively,which announced the birth of the early legal positivism theory based on the concept of the sovereign.The fourth chapter attempts to explain the process of dissolving the concept of sovereignty.In my opinion,due to the Nuremberg trial,the change of philosophy and the rise of the civil rights movement after World War II,the concept of sovereignty gradually declined.Kelsen and Hart pointed out that the concept of sovereignty has been difficult to explain the current rich legal reality,and proposed to reconstruct the theoretical system of legal positivism with “Basic Norms” and“ the Rule of Recognition ” respectively.Since then,the concept of sovereignty of legal positivism came to an end.