Why Do the Constitutional Studies of the "Parliamentary Sovereignty" Require Historical Research?

Abstract

Sovereignty of generally means first that Parliament may do anything it wishes, and secondly that there is no person or body in United Kingdom with power to set its acts aside, namely that no Act of Parliament could be declared to be invalid by courts of law. This doctrine was systematized by A. V. Dicey in late nineteenth century, and has been upheld by orthodox English lawyers. But, on other hand, some new attempts have been made to question doctrine. According to them, if Parliament were truly sovereign, it would necessarily be above law, which would contradict Dicey's own theory on rule of law. question which has not been settled is relation between Acts of Parliament and common law.Sir Ivor Jennings insists that in Dicey's sense is a doctrine of law. Therefore, he holds view that Parliament's legal power depends on a legal rule which is established by courts. point is presented by Jennings in form of a paradox: since Parliament can change law as it likes, it can alter law about itself as well as law about anything else.On contrary Dicey school has considered that no Parliament could legislate to prevent repeal or amendment of its own enactments, or, to put it tersely, no Parliament could bind its successors. Under this view a fallacy in Jennings' attempt was to secure settlement within limits of unmixed legal principle.H. W. R. Wade, who supports Dicey's view, refers to J. W. Salmond to solve said paradox. What Salmond calls legal principle is a rule which is unique in being unchangeable by Parliament, whose operation is ultimate and whose source is not legal, but only historical. He says that doctrine of parliamentary sovereignty is in one sense a rule of common law, but in another sense, it is political fact upon which whole system of legislation hangs.E. C. S. Wade, who also supports Dicey's view, cites from J. Bryce: The historical facts which have vested power in any given sovereign lie outside questions with which law is concerned, and belong to historical or to political philosophy or to ethics.O. H. Phillips also says, The legislative supremacy of British Parliament, as well as being a legal concept, is also result of political history and is ultimately based on fact, that is, general recognition by people and courts. It is therefore at same time a legal and political principle. He refers to H. L. A. Hart, who calls it the ultimate rule of recognition, which may be regarded both as an external statement of fact and as an internal criterion of validity.Salmond's principle bears a close resemblance to Kelsen's Grundnorm. But R. T. E. Latham has succeeded in proving that Grundnorm, whether or not it coincides with written constitution, is prior and superior to legislature and is daily so treated by courts, so that he denies doctrine of parliamentary sovereignty. On other hand, according to some new views, Dicey failed in proving that law made legislature a sovereign law-making body, nor has any of his followers succeeded in doing so.