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The Sovereignty of Parliament : History and Philosophy - Jeffrey Goldsworthy

The Sovereignty of Parliament

History and Philosophy

Hardcover Published: 1st November 1999
ISBN: 9780198268932
Number Of Pages: 330

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The doctrine of parliamentary sovereignty has long been regarded as the most fundamental element of the British Constitution. It holds that Parliament has unlimited legislative authority, and that the courts have no authority to judge statutes invalid. This doctrine has now been criticized on historical and philosophical grounds and critics claim that it is a relatively recent invention of academic lawyers that superseded an earlier tradition in which Parliament's authority was limited to common law. The critics also argue that it is based on a misunderstanding of the relationship between statutory and common law, and is morally indefensible. The Sovereignty of Parliament: History and Philosophy responds to these criticisms. It first defines and clarifies the concept of legislative sovereignty and then describes the historical origins and the development of the doctrine from the thirteenth to the end of the nineteenth century. Professor Goldsworthy goes on to identify many different reasons why persuaded statesmen, lawyers, and political theorists have endorsed the doctrine. He discusses the ideas of a large number of legal and political thinkers, including Fortescue, St German, Hooker, Coke, Bacon, Parker, Milton, Hobbes, Hale, Locke, Bolingbroke, Blackstone, and Burke. He shows that judges in Great Britain have never had authority to invalidate statutes, and that the doctrine is much older than is generally realized. The book concludes by dealing with philosophical criticisms of the doctrine. Combining the insights of earlier thinkers with those of contemporary legal philosophers, it demonstrates that these criticisms are based on a defective understanding of the nature and foundations of law, and of the relationship between legislative authority and the common law. It argues that the doctrine is morally defensible, and refutes the thesis that the judges have authority to modify or reject it.

`A powerful defence of the idea of parliamentary sovereignty ... Goldsworthy is able to inflict serious damage on the arguments advanced by recent critics of parliamentary sovereignty.' History of Political Thought `an immensely learned book, old-fashioned legal scholarship at its best but with obvious contemporary relevance.' (2000) 71 Political Quarterly 260 `timely evaluation of the doctrine of parliamentary sovereignty Goldsworthy has produced a stimulating and thoughtful book that ought to be required reading for both the judiciary and those infatuated with the prospect of rationalising and remodelling constitutions.' Australian Journal of Political Science (2001) Vol. 36 `a learned and readable book on one of the great topics in legal history and present-day political debate. ... his erudite and detailed survey will, for many years to come, be the starting point for serious research on this subject.' Ius Commune 2001 `The opening chapters review a considerable breadth of historical material ... and the final chapter is a significant contribution to the discussion of the siurce of the ultimate authority in law.' Edwin Simpson, Law Quarterly Review `immensely valuable, interesting and completely convincing. Professor Goldsworthy approaches his topic with obvious fairness and writes with clarity and understanding.' Christopher Forsyth, The Cambridge Law Journal 2000 `Goldsworthy provides a valuable analysis of the political theories of the time, discussing Parliament's authority from the perspective of royalist theories and common law theories.' Hilaire Barnett, Public Law 2000

1: Introduction 2: Defining Parliamentary Sovereignty A. Parliament and Sovereignty Defined B. Sovereignty and Higher Law 3: From Bracton to the Reformation A. Medieval Kingship, Law and Politics B. Parliament and its Authority C. Parliament as a Law-maker D. Parliament and the Courts E. Parliament in Legal Theory F. Parliament and the Church 4: The Sixteenth Century A. The Authority of Parliament Extended B. The Supremacy of Parliament Recognised C. Two Theories of the Authority of Parliament D. Royalist Theories E. Parliamentarian Theories F. Prelude to the Seventeenth Century 5: From James I to the Restoration A. Political Theories in Early Stuart England B. Royalist Theories of the Authority of Parliament C. Parliamentarian Theories of the Authority of Parliament D. Common Law Theories of the Authority of Parliament E. Parliamentary Sovereignty Affirmed F. The Interregnum 6: From the Restoration to the Revolution A. Monarchist Ideologies B. Whig Ideology 7: After the Revolution A. Whig and Tory Consensus B. The Union of England and Scotland C. Legal Sovereignty, Popular Sovereignty, and the Right of Resistance D. Law-Making Power and Constitutional Principle E. British Opinion During the American Crisis F. Judicial Opinion and Legal Theory G. American Revolutionary Constitutional Theory H. The Reform Movement in Britain 8: The Nineteenth Century 9: Historical Conclusions 10: The Philosophical Foundations of Parliamentary Sovereignty A. Parliamentary Sovereignty and Legal Philosophy B. Law as the Foundation of Law-making Authority C. The Common Law as the Foundation of Law-making Authority D. Legal Principles as the Foundation of Law-making Authority E. The Practice of British Officials F. Official Consensus as the Foundation of Law-making Authority G. The Argument From Extreme Cases H. Further Arguments I. The Alleged Necessity of Judicially Enforceable Constitutional Rights Bibliography

ISBN: 9780198268932
ISBN-10: 0198268939
Audience: Professional
Format: Hardcover
Language: English
Number Of Pages: 330
Published: 1st November 1999
Publisher: Oxford University Press
Country of Publication: GB
Dimensions (cm): 24.2 x 16.3  x 2.2
Weight (kg): 0.62