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The Sovereignty of Parliament
History and Philosophy
Jeffrey Goldsworthy
330 pages
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234x156mm
978-0-19-826893-2
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Hardback
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29 July 1999
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This item is printed to order and supplied on a firm sale basis. Items which are printed to order are normally despatched and charged within 5-10 days.
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- Historical and philosophical approach to the doctrine of sovereignty in parliament
- Up-to-date, comprehensive, and detailed treatment of the subject
- Examines the current legal and philosophical foundations of the doctrine and responds to recent criticisms
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and philosophical grounds and critics claim that it is a relatively recent invention of academic lawyers that superseded an earlier tradition in which Parliament's authority was limited to common law.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.Readership: Constitutional lawyers, legal philosophers, historians of British history, and political theorists and judges. Scholars and students of constitutional
law
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Jeffrey Goldsworthy, Professor of Law, Monash University, Australia
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"Professor Goldsworthy has written an important and valuable book, and historians of English political thought will find in it a broad and thoroughly informed account of the development of ideas on parliamentary sovereignty." - History of Political Thought "The historical arguement is persuasively made ..." - Geoffrey Marshall, TLS "Jeffrey Goldsworthy of Monash University now looses a vigorous counter-blast on both the historical and philosophical fronts." - Geoffrey Marshall, TLS "Goldsworthy's use of secondary sources and his scholarship are admirable. The style may be allusive, but it is nonetheless very readable and his arguments in the chapter dedicated to the
philosophical foundations of the doctrine are clearly written and accessible." - Patrick Birkinshaw, THES. "This valuable book will be found challenging by the critics of parliamentary sovereignty. In its mild and persuasive way, it leaves their arguments in shreds ... This book will prove impossible to ignore in that debate; Indeed, its arguments will dominate it." - Christopher Forsyth, The Cambridge Law Journal 2000
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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
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