Popular Sovereignty Without Democracy

The notions of popular sovereignty and of democracy or democratic legitimacy are often connected and at times even conflated. This paper demonstrates that there is no necessary connection between popular sovereignty and democracy or legitimacy, and that calls for democratic legitimacy therefore cannot be based on popular sovereignty alone. This is shown via an analytical philosophical definition of popular sovereignty that links the idea that “all state power emanates from the people” with HLA Hart’s rule of recognition and Jean Hampton’s governing convention. As such, popular sovereignty is the extra-legal power of a people to constitute, maintain and deconstruct a legal system by instantiating a convention to regard norms satisfying the rule of recognition as preemptive and final. This understanding of popular sovereignty shows that popular sovereignty fulfils a primarily explanatory role for which it does not require democracy, and that it has very limited justificatory value. It is therefore also unsuited for justificatory purposes when it comes to legitimising state power.