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The Sovereignty of LawFreedom, Constitution and Common Law$
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T.R.S. Allan

Print publication date: 2013

Print ISBN-13: 9780199685066

Published to Oxford Scholarship Online: September 2013

DOI: 10.1093/acprof:oso/9780199685066.001.0001

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Parliamentary Sovereignty: Authority and Autonomy

Parliamentary Sovereignty: Authority and Autonomy

(p.133) 4 Parliamentary Sovereignty: Authority and Autonomy
The Sovereignty of Law

T. R. S. Allan

Oxford University Press

Dicey's absolutist conception of parliamentary sovereignty should be rejected in favour of an account of legislative supremacy compatible with the rule of law. Conventional accounts of the ‘rule of recognition’, treating sovereignty as legal or political fact, are erroneous. We need not choose, therefore, between ‘continuing’ and ‘self-embracing’ accounts, which are only broad generalizations, extraneous to legal analysis. Legislative supremacy has a moral foundation within a general theory of British government: it authorizes only the legitimate use of state power. Matters of fundamental rights and the primacy of European law alike pose a challenge to absolutist conceptions of sovereignty. Goldworthy's legal positivist account is rejected. The important judgments in Jackson, Factortame, and Thoburn are closely considered. A protestant approach to interpretation, giving a critical role to personal conscience and commitment, has implications for the limits of sovereignty (limits implicit in Dworkin's theory of law, when correctly understood).

Keywords:   legislative supremacy, rule of recognition, legal or political fact, Dworkin, Goldsworthy, Jackson, Factortame, Thoburn, legal positivism, protestant interpretation

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