On Parliamentary Sovereignty: A Critique of the Hartian Defence

Abstract

<p>The classic understanding of parliamentary sovereignty (per Dicey) is that Parliament enjoys absolute legal authority. Call this the Orthodoxy. An important line of defence of the Orthodoxy—relied on by both classic writers like Wade, and contemporary writers like Ekins and Goldsworthy—is based on Hart’s idea of the rule of recognition: that parliamentary sovereignty is extant, as part of the rule of recognition underlying the United Kingdom’s (UK’s) legal order. Call this the Hartian Defence. Two propositions will be made in this article. First, the Hartian Defence fails on its own terms. For if its internal logic is faithfully followed, it will entail the conclusion that Parliament cannot—and could never have—enjoyed absolute legal authority, contra the Orthodoxy. Secondly, the failure of the Hartian Defence demonstrates a more general point about the Orthodoxy, even if it were defended by other means. It is that the Orthodoxy paints an impossible picture of the UK constitution, and is accordingly an undesirable academic theory.<br></p>