Contested traditions: political and legal constitutionalism

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This topic is within Principles of Public Law.

Contents

Required Reading

Blackshield, T, Williams G, Australian Constitutional Law & Theory: Commentary and Materials (5th ed, Federation Press, 2010) pp.83-85; 86; 88-90; 95-7; 4-6.

Supplementary materials: Mat 2B

Classical Diceyanism and contemporary challenges

Parliamentary Sovereignty

[1] The concept of Parliamentary Sovereignty broadly means that Parliament has the right to make or unmake any law, and no person is allowed to override or set aside the law of Parliament.

  • Acts of Parliament override the law of the judges.
  • There are two limits to Parliamentary Sovereignty:
    • External: the people may disobey or resist the laws of Parliament
    • Internal: limitations arising from the moral feelings of those who sit in Parliament (ie, members of our Parliament wouldn’t legislate laws against a specific race today because the members themselves consider it morally wrong)

These ideas were set forth by AV Dicey. Jeffery Goldsworthy raised the following points in support of parliamentary sovereignty:[2]

  • There must be a single, ultimate and unlimited law making power.
  • Because it is representative, Parliament’s decisions are a reflection of the collective wisdom on the community. This makes it the preferable ultimate authority.
  • Parliament is thus also the highest court in the land, where no appeal is possible.
  • If its authority was limited and not sovereign, Parliament would not be able to take extraordinary measures in cases of emergency.
  • The system of checks and balances of the Parliament is the best safeguard against tyranny.
  • Judges could not be trusted with the authority to strike down Parliament legislation.
  • Parliamentary tyranny is thus highly unlikely, and it is the best agency to serve as the ultimate, sovereign authority.

The limits of Parliamentary Sovereignty

[3] TRS Allan describes the following limitations to parliamentary sovereignty:

  • The concept of Parliamentary Sovereignty is not of limitless power.
  • Judicial obedience to statutes doesn’t only reflect the authority of the Parliament; it also reflects the judicial understanding of what political morality demands.
  • The courts will not recognise the laws of Parliament which threatens “the essential elements of any plausible conception of democratic government.
  • Thus, legal authority of a statute is derived from its compatibility with contemporary political morality, which constitutes the rule of law.
  • The rule of law seeks to protect the individual’s rights, and to protect him from arbitrary power.
  • If Parliament ceased to be an effective representative assembly, the courts would resist its laws.

In Australia, Parliamentary Sovereignty is to be understood as operating within the limits imposed by the Constitution. Notice that the Constitution can ultimately be changed by Parliament (admittedly, through a complex procedure) and Parliament can also overrule court decisions.

The rule of law

The Rule of Law aims to prevent the exercise of arbitrary or tyrannical power. It became popularised by AV Dicey, who described it through three main tenets[4] :

  1. A man can only be punished if it was proved in court that he breached a law.
    • This means that the Sovereign cannot punish people arbitrarily.
  2. No man is above the law, and everyone is equal before the law.
    • This means that the law applies to everyone in the exact same way regardless of social, economic or political status.
  3. The Constitution (the law) is the result of previous judicial decisions determining the rights of private persons.
    • This means the constitution is not the source of the law, but the consequence of inherent rights. We don’t derive our rights from the Constitution; the Constitution is the result of our rights.

Reconciling Parliamentary Sovereignty with the Rule of Law

A problem arises because Parliamentary Sovereignty entails the Parliament’s ability to make or unmake whatever law without restriction. This necessarily entails that Parliament is not bound by the Rule of Law, and it can exercise power arbitrarily.

AV Dicey tries to reconcile these two concepts[5]:

  • Parliamentary Sovereignty, unlike other types of sovereignty, favours the supremacy of the law.
  • Two reasons why Parliamentary Sovereignty won’t result with arbitrary power:
    • The will of Parliament can only be expressed through an act. These acts are only passed after a formal and deliberate process involving two houses and the Queen. An act is also subject to judicial interpretation.
    • Parliament has never attempted (except for the revolution) to exercise executive power.

Dicey’s reconciliation is largely unpersuasive. WI Jennings undermines Dicey’s reconciliation as follows:[6]

  • The complex process which Dicey described is not actually at all complex or deliberate. Several examples can be provided where Parliament passed drastic acts in one sitting or one day. This is arbitrary power indeed.
    • Defence of the Realm Act 1914 – gave Parliament drastic powers
    • Sweeping of the ‘Gold Standard’ in 1931
  • Parliament is not limited to the enunciation of general rules. This means its orders are not merely legislative.
    • It has condemned people to death, release people from compliance with the law, declare marriages void,
  • Parliament can both override judicial interpretation, or even provide that an act is not subject to judicial interpretation.

The rule of Law as a protector of human rights

Dicey has argued that the combination of the common-law and the Rule of Law adequately protect human rights, thus eliminating the need for a statutory human rights law.[7]

Supplementary Materials

USG notes: we have not been able to complete summaries for the supplementary materials yet. Please make sure you read them on your own. If you have notes on this information, PLEASE help us out by sending it to us at info@unistudyguides.com or by contacting us here.

End

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References

Textbook refers to Blackshield, T, Williams G, Australian Constitutional Law & Theory: Commentary and Materials (6th ed, Federation Press, 2014)

  1. AV Dicey, Introduction to the Study of the Law of the Constitution, (Macmillan, 1st ed 1885, 10th ed 1959 in Textbook, pp. 83-5
  2. Jeffery Goldsworthy, The Sovereignty of Parliament: History and Philosophy (Clarendon Press, 1999, pp. 233-4) in Textbook, p. 86
  3. TRS Allan, Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism (Oxford University Press, 1993, pp. 282-3, 290) in Textbook, pp. 88-9
  4. AV Dicey, Introduction to the Study of the Law of the Constitution, (Macmillan, 1st ed 1885, 10th ed 1959, pp. 45-54) in Textbook, p. 90
  5. AV Dicey, Introduction to the Study of the Law of the Constitution, (Macmillan, 1st ed 1885, 10th ed 1959, pp. 406-8) in Textbook, pp. 95-6
  6. WI Jennings, The Law and the Constitution (University of London Press, 5th ed 1959, pp 54-58) in Textbook, pp. 96-7
  7. AV Dicey, Introduction to the Study of the Law of the Constitution, (Macmillan, 1st ed 1885, 10th ed 1959, pp. 198-202) in Textbook, p. 97
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