Thomas Adams (University of Oxford – Faculty of Law) has posted The Dead Man and the Constitution on SSRN. Here is the abstract:
A standard narrative about the constitution over the past 50 years is one of transformation. In particular, the doctrine of parliamentary sovereignty is understood to have been qualified. In this article I suggest that narrative is mistaken. My core claim is that the constitutional innovations standardly understood to require a reconceptualisation of sovereignty—in particular the disapplication of statutes following a legislative injunction—are based on a misunderstanding of that doctrine attributable, in the first place, to A.V. Dicey. Famously, Dicey held that sovereignty involved two ideas. First, that Parliament has the ability to make or unmake any law. Second, that no other body has the right to set aside Parliamentary legislation. I argue that the first of these principles qualifies the second in a way that went unnoticed by Dicey. While sovereignty implies that no other body may override legislation of its own volition, it may do so if empowered by Parliament.
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