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This article is a Reply to Jeffrey Goldsworthy's review essay of The Constitution of Independence. The Reply isolates a few key points of disagreement. First, while it is agreed that change in the rule of recognition is a question of fact, determined in accordance with the attitudes of officials, in analysing such change, it is important to identify actors and institutions, such as legislatures and constitution-making and -amending bodies, which are already recognised within an existing legal system as having the ability to propose changes to the rule of recognition. Secondly, given the rarity of attempts to change the ultimate rules of the legal system, some of the rules that govern such change are uncertain. However, it is important not to conclude from this uncertainty that such change is legally unregulated. Thirdly, in determining whether any self-embracing parliamentary limitation is acceptable, it is not enough to say that each generation must have a continuing ability to legislate freely, because the exclusion of certain self-embracing options is itself a limitation on what those generations may deem sensible and necessary. Fourthly, independence legislation is one sort of substantive self-limitation that makes sense. The Reply also identifies points of agreement: the existence of unquestioned assumptions about the ultimate rules of a legal system; the importance of maintaining a vibrant if imperfect political process and of not shifting too much control over that process to the judiciary; the appropriateness of a modified Hartian approach rather than a Dworkinian one; the obsolescence of the Diceyan (or “strong” sovereignty) interpretation of parliamentary sovereignty; and the importance of coming to a better understanding of how ultimate constitutional rules change.

Document Type: Research Article

Publication date: January 1, 2006

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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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