upon that which it governs, which is the law. Consequently, what the theory delivers is not an explanation of law, but a patent contradiction. The immediate cause of the contradiction is that the different varieties of sociological jurisprudence identify the sovereign’s will with the entirety of the sovereign’s decrees, including the constitution. And since the law and the sovereign’s will have been equated with each other, the following problem arises: If the sovereign ceases to obey the constitution, then the constitution ceases to be valid, which in turn dissolves the existing identity between the will and the law. This implies that the constitution itself neither applies to nor binds the sovereign, as the application of the constitution to the sovereign’s acts, in the case of the sovereign violating the constitution, would invalidate the theory.The question is this: Does the sociological will-theory leave any room open for the possibility of a sovereign’s violation of the sovereign’s own decrees? If such violation is possible, then the sovereign would have willed that which the sovereign had not-willed. Moreover, since sociological jurisprudence hinges its theory upon actual obedience to a rule, then the sovereign’s non-application of rules would imply that the legal importance of such rules would cease to have any effect once they were not applied.143 In order to bring the theoretical constructions of sociological jurisprudence back to reality, the will theorists must circumvent the fact that in constitutionally governed states the legal authority of the sovereign itself cannot be its own cause, as a legal analysis of the sovereign’s power and lawmaking status results in the following observation: p a r t v, c h a p t e r 3 338 “Is it really the case that ‘the political authority,’ as Holland calls it, has de facto power independent of any law which is over and above it, and that the law has authority only through this power? Let us confine ourselves for the present to constitutionally governed states. Is it not true that, just as the private individual must appeal to the positive law [Swedish: gälllande rätt] when making claims on other individuals if he is to get his rights, so too must the political authority base himself on the existing 143 Hägerström, “Är gällande rätt?,” p. 71; “Is Positive Law?,” p. 30.
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