Author: OLIVER, PETER C.

Source: King's Law Journal, Volume 14, Number 2, 2003 , pp. 137-178(42)

Publisher: Hart Publishing

Abstract:

This article evaluates the nature and continuing relevance of sovereignty, particularly with reference to the United Kingdom Parliament and the evolution of Member State/European Union legal systems. The article begins with an extended discussion of the different questions, paradoxes and ambiguities which underlie sovereignty. With regard to the sovereignty of Parliament, the article acknowledges a long tradition of judges refusing to impose limits on the enactments of the Sovereign-in-Parliament (recently described by Jeffrey Goldsworthy); however, it argues that the possibility of Parliament itself directing that courts impose such limits is virtually unexplored. Also unexplored therefore is the possibility of future Parliaments gradually and variably entrenching a British constitution as they deem appropriate. Regarding the evolving Member State/European Union relationship, Neil MacCormick's recent writing is considered. MacCormick's may exaggerate the extent to which sovereignty questions are absent as opposed to de-emphasised, and he may over-simplify the way in which the rule of recognition can be changed, but his approach helpfully opens up new possibilities for contemporary analysis of sovereignty (and the related concept of legal system). The article and the writers mentioned focus on the legal-logical part of constitutional analysis. The article concludes with a reminder of the relevance of the popular-political, of legitimacy and facticity, notably in an area of law where central constitutional rules seldom come to be considered by courts.

Keywords: Sovereignty; legal system; Parliament; European Union; supremacy; rule of recognition; constitutional change; core/penumbra; continuing/self-embracing; legitimacy; Jeffrey Goldsworthy; Neil MacCormick; H.L.A. Hart

Document Type: Research article

Publication date: 2003-01-01

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• Until 2007 the King's Law Journal was known as the King's College Law Journal. It was established in 1990 as a legal periodical publishing scholarly and authoritative Articles, Notes and Reports on legal issues of current importance to both academic research and legal practice. It has a national and international readership, and publishes refereed contributions from authors across the United Kingdom, from continental Europe and further afield (particularly Commonwealth countries and USA). The journal includes a Reviews section containing critical notices of recently published books.
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