Marc Johnson (University of Southampton) and Samson Jose (University of the West of England) have posted Redefining Parliamentary Sovereignty: We Do Not Believe in Fairy Tales Anymore (Keele Law Review) on SSRN. Here is the abstract:
This article reexamines the orthodox Diceyan conception of parliamentary sovereignty in light of contemporary constitutional principle and practice in the United Kingdom. It argues that the traditional claim that Parliament may legislate without legal limitation remains doctrinally influential but is no longer an adequate account of legislative authority within a constitutional order committed to the rule of law. The article contends that sovereignty should not be understood as an inherent or absolute attribute of Parliament, but as a contingent and legally mediated form of authority, sustained through recognition within the legal order and bounded by the constitutional requirements of legality, accountability, and access to justice. Rather than treating Parliament as a monolithic constitutional actor, the article analyses legislation as the product of individual parliamentarians acting within structures of party discipline, executive dominance, and electoral distortion. On that basis, it argues that the language of sovereign Parliament obscures the reality that law-making power is exercised by identifiable political actors whose authority requires legal constraint. It develops this claim through public law doctrine and constitutional theory, including the rule of recognition, the grundnorm, social contract thought, and contemporary jurisprudence on legality and ouster clauses. The article concludes that the better view is not that the rule of law bends to parliamentary sovereignty, but that Parliament’s legislative authority is itself conditioned by the rule of law and by the constitutional limits necessary to secure democratic legitimacy. In that sense, the article advances a redefined account of parliamentary sovereignty suited to the modern constitutional framework of the United Kingdom.
To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum