Popular sovereignty facing the deep state. The rule of recognition and the powers of the people

Abstract

This paper investigates the relationship between the idea of popular sovereignty and the conditions for legal validity and argue that the latter imposes definitive limits to the former. Popular sovereignty has been defined as the condition when the will of the people is the “supreme authority in the state”. Following this conception, there is no authority above the people and this is traditionally understood to mean that the authority of the people is above the constitution. Legal validity, though admittedly still debated, is here understood along Hart's “rule of recognition” According to which the validity of norms ultimately depends on the social practices of public officials. Though presumably uncontroversial that democratic peoples are entitled to remake the constitution, the powers of the people with respect to the substance of the law are nevertheless limited with respect to decisions of legal validity. The most basic rules in a legal system are not found in the constitution as they are the rules deciding what is to count as a legal norm within that system. They are more fundamental than the constitution because they also define what norms is the constitution legally speaking.