sovereignty re-examined. the courts, parliament, and statutes

8/13/2019 Sovereignty Re-Examined. the Courts, Parliament, And Statutes

1/24Electronic copy available at: http://ssrn.com/abstract=2240826

Oxford Journal of Legal Studies, Vol. 20, No. 1 (2000), pp. 131154

Sovereignty Re-examined:

The Courts, Parliament, and Statutes

N. W. BARBER

AbstractIn this article the relationship between Parliament and courts is examined.The views of writers on sovereignty are considered and criticized. Two criticisms of

the sovereignty theorists are made: first, that they wrongly assume that a legal systemmust attribute supreme legal power to a single source and, second, that they wronglyassume that statutes in the English system constitute absolute exclusionary reasonsfor decision. It is contended that legal systems can, and the English Constitutiondoes, contain multiple unranked sources of law. Harts rule of recognition andKelsens Grundnorm are considered and compared, and found to be insufficientlyflexible to meet the realities of the English Constitution. A more complicated modelof judicial reactions to statutes is proposed, and decisions of the judges that runcontrary to the law as set down in the statute are considered. It is contended thatthe relationship of the courts to Parliament ought not to be considered a purelylegal issue; it also has a political dimension.

1. Introduction

This is an essay about the relationship between the courts and Parliament. Its

focus is on the English1 legal system, but many of its conclusions will also be

true of other legal systems. The essay examines the manner in which the courts

react to Parliaments statutes. It will suggest that the traditional concept of

sovereignty, in all its manifestations, is unhelpful and misleading. A new under-

standing of the force of statutes, grounded in the works of Joseph Raz, will be

put forward. The first half of the essay will examine the doctrine of sovereignty,

and develop two fundamental criticisms of that doctrine. The second half will

build on those criticisms to produce a more accurate model of the relationship

between the courts and Parliament.

2. SovereigntySovereignty theorists can be divided into two camps. There are those who

advance theories of institutional sovereignty, and those who support theories

of rule-based sovereignty.

Brasenose College, Oxford. Thanks are due to John Daley, John Eekelaar, Adam Green, Neil MacCormick,

and Soren Schonberg, all of whom have helped improve this essay beyond all measure. Needless to say, none

wholeheartedly agrees with its contentions. I have benefited from John Daleys unpublished DPhil thesis, The

Bases for the Authority of the Australian Constitution.1

I speak throughout of theEnglishlegal system; Scotland poses interesting and distinct problems for sovereignty.

2000 Oxford University Press



VOL. 20Oxford Journal of Legal Studies132

The principal advocate of institutional sovereignty is John Austin.2 Austin

articulated a theory of sovereignty in which a single institution, or group of

institutions, possessed supreme law-making power. The sovereigns power was

absolute, and unique.3 It was absolute, because the sovereign could will that

anything be law.4 The power was unique, because no other institution had an

independent right to legislate.5 Any other body within a constitution that created

or developed law could only do so because of the tacit authorization of the

sovereign body. Austins understanding of sovereignty was grounded in a power

relationship rather than in a rule. The courts did what the sovereign told them

not because a rule obliged it, but simply because the sovereign was the most

powerful actor in the legal system. Applying the theory to the English Con-stitution, Austin argued that Parliament possessed the sole right to create and

develop the law.6 Parliament was the fount of legal validity.7 All laws within the

English system were valid either because Parliament had expressly willed them

to be so, or because Parliament had impliedly endorsed them by allowing laws

created by other institutions to remain.8 Austin was, in part, providing an answer

to the question of the identity of a legal system; a mechanism by which one legal

order could be distinguished from another.9 This interesting question underlies

much of what has been written on sovereignty, and will be examined more

closely later.

Austin believed that he was producing a general theory of legal systems. He

thought it logically necessary that a group of people or institutions possessed

absolute, and unique, legal authority within a system. Tested as a theory of alegal system, Austin is found to be wanting.10 Austin could not satisfactorily

explain how courts and citizens identify the sovereign; why a rule enacted by

the King, Lords, and Commons was a statute, but a pronouncement of the

Commons alone was not. He could show that this was the case as a matter of

fact, because citizens lacked a habit of obedience towards the Commons alone,

but he could not conceptualize this habit in terms of a rule. Consequently, he

could not explain how sovereignty was passed from one group of individuals to

another group; he could not explain the continuity of legal systems.11 The answer,

2J. Austin, The Province of Jurisprudence Determined(1954) Lecture vi; see J. Raz, The Concept of a Legal System

(2nd edn, 1980) chs 1 and 2.3

The success of Austins project depended partly on definitional fiat; he divided the actors in the legal system

into those he classed as sovereign and those classed as subordinate. Difficult examples were resolved by expanding

the group marked sovereign, or by stipulating that an institution was subordinate to another. See Austin, above

n 2 at 233, 246. There is a risk that Austins theory will collapse into the truism that all legal systems must claim

legal supremacy, on which see J. Raz, The Institutional Nature of Law in The Authority of Law (1979) at 11819.4

The notion of a sovereign bound by rules was a conceptual impossibility: Austin, above n 2 at 2545. The

only constraints on the sovereign were extralegal: Austin, ibid at 21516.5

Ibid at 1934, 254.6

Ibid at 224, 230. Sovereignty was shared between the King, the Lords, and the electorate of the House of

Commons. It is important to remember that, in Austins eyes, the electorate of the Commons was not, and should

not be, equated with the adult population.7

Ibid at 2356.8

Ibid at 312.9

H. L. A. Hart, The Concept of Law (2nd edn, 1994) 25; J. Raz, The Identity of Legal Systems, above n 3.10

Hart, above n 9, especially ch 4.11

Ibid at 534; but see the partial defence in M. Bayles, Harts Legal Philosophy (1992) 3542.



SPRING 2000 Sovereignty Re-examined 133

as Hart elegantly demonstrates, is found in the rules that officials use to identify

law-making bodies. These rules are distinct from the institutions they identify,

and need not alter when the composition of those bodies changes. 12

Austins work seems archaic in the light of Harts criticisms, but there are

valuable lessons to be learned from his writings. Austins understanding of our

legal system focused on the political balance between the courts and Parliament.

The legal rested upon the political. Hart demonstrated the inadequacies of such

an approach; but perhaps there is still something to be gained from thinking of

legal institutions in political terms. Later in the essay I will try to reintroduce a

political dimension into our understanding of the English Constitution.

The two leading modern supporters of rule-based sovereignty are Wade13 andHeuston.14 Both saw sovereignty as a rule by which the courts could determine

the authoritative pronouncements of Parliament. Of the two, it is Heuston who

was closest to Austin. For Heuston, sovereignty was a single, simple rule: it

stated that all that Parliament willed was law. This rule could be clarified, or

defined, by Parliament: it could determine how its will was to be ascertained,

and what was to constitute Parliament.15 Heuston argued that Parliament could

legally bind its future self by determining the manner and form by which its

statutes were identified under this rule. Despite granting Parliament absolute

supremacy, Heuston differed from Austin in recognizing that the criterion for

the identification of sovereign acts was distinct from the identity of the sovereign

body; sovereignty was grounded in a rule.

Wades approach to the question is more sophisticated. He argues that therule by which statutes are identified is beyond the reach of Parliament. The rule

is a political fact16 that can be deduced from the practice of the judges. Whilst

recognizing that the manner and form model advanced by precursors of Heuston

was a possible model of a legal system,17 Wade argues that in the English system

the power of Parliament is constrained by the common law. The common law

contains a rule that identifies those enactments of Parliament that should be

treated as statutes. This rule is above Parliament, logically prior to it, and could

not be altered from within the existing legal system.18 Wades fundamental rule

is more complex than that of Heuston. It contains criteria by which Parliament

as an institution may be identified, and sets tests which that institutions pro-

clamations must pass before the courts will recognize them as law.

12Ibid at 5961.

13W. Wade, The Basis of Legal Sovereignty [1955] CLJ172.

14R. Heuston, Essays in Constitutional Law (2nd edn, 1964) ch 1.

15Contrast the slightly different reading in P. Craig, Sovereignty of the United Kingdom after Factortame

(1991) 11 Yearbook of European Law 221 at 225, where Heuston is taken to advocate multiple rules, identifying

the composition of Parliament and the procedure which must be undertaken before a statute is passed. Craigs

reading is closer to Heustons words (see Heuston, n 14 at 69, 24), but it is submitted that Heuston pre-supposes

a higher ruleall that Parliament enacts is lawwhich can then be defined by the other rules discussed by

Heuston.16

Above n 13 at 188.17

Ibid at 1756.18

Ibid at 189.


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The theories of both Wade and Heuston are unconvincing. Heustons theory

effectively entailed that a Parliament could bind its successors in any way, and

to whatever extent, it wished.19 In contrast, Wades theory held that no Parliament

could ever bind its successors.20 Neither of these extremes seems plausible.

Despite this radical difference, the two positions have surprising similarities.

Wade and Heuston agree that there is a rule in the English legal system that

identifies the highest source of law; they agree that the highest legal source is

Parliament. Both believe that the most recent statute passed by Parliament

constitutes an absolute exclusionary reason for the courts decision, preventing

the judges from considering other reasons that might bear on the question before

them.The remainder of this part of the essay will be spent arguing for two pro-

positions. First, that in some legal systems there are multiple unranked sources

of legal power: Wade and Heuston are wrong to assume that a legal system must

give priority to one legal source. Secondly, that the most recent enactment of

Parliament need not constitute an absolute exclusionary reason for judicial

determination of the law on a topic; the scope of the statutes exclusionary force

may be limited.

A. The first objection: the possibility of multiple unranked sources of legalpower

The analyses of Wade and Heuston both implicitly assume that the English

system must contain a rule identifying a supreme legal source. This assumptionis shared by two of the most significant voices in modern jurisprudence: Kelsen

and Hart.21

Kelsen believed that all legal systems possess a single supreme rule; the

Grundnorm.22 The Grundnorm played at least two roles in Kelsens legal philos-

ophy.23 First, it enabled actors within the legal system to identify proposed

norms as objectively valid legal norms.24 The Grundnorm identified a founding

constitution that, in its turn, provided a set of rules which could be used to test

the legal identity of lower level legal norms. The legal system took the form of

a pyramid: at its top was the Grundnorm, at its base were the lowest level of

practical norms, directing and forbidding action. Each separate legal system had

its own, distinct, Grundnorm.25 The Grundnorm linked together disparate low-

level legal norms into a single system. We know that these diverse norms formed

19Above n 14 at 6, 2930; above n 13 at 181; Hart, above n 9 at 14952.

20Above n 13 at 1867; sharing this view with Austin: Austin, above n 2 at 254.

21More recently, Harris has also defended this view. See J. Harris, Law and Legal Science (1973) especially ch

3.22

H. Kelsen, General Theory of Law and State (transl. A. Wedberg, 1948) 11023, 3956.23

J. Harris, When and Why Does the GrundnormChange? (1971) 29CLJ103 at 1068; see also C. Richmond,

Preserving the Identity Crisis (1997) 16 Law and Philosophy 376 at 3924.24

H. Kelsen, Pure Theory of Law (transl. M. Knight, 1967) 198201.25

H. Kelsen, Professor Stone and the Pure Theory of Law (1965) 17 Stanford LR 1128 at 11489.


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part of a single legal system because they had a commonelement: the Grundnorm.26

Second, the Grundnorm was a presupposition of validity that enabled legal

reasoning.27 If some one asserted a legal norm and was challenged as to its

validity, she could defend her contention by pointing to a higher level norm that

empowered the creation of the lower norm. This could continue all the way up

the legal chain to the Grundnorm. The Grundnorm, as the highest legal rule,

could not be validated by reference to a further legal rule; its legal validity must

be presupposed in order for legal reasoning to be undertaken. Consequently,

anyone who engaged in legal reasoning impliedly accepted the existence, and

legal validity, of the Grundnorm. In acting as a rule against which the identity of

other purported legal norms can be tested, the Grundnorm simultaneouslyvalidated these norms by allowing their inclusion within the legal system.

The relationship between Kelsens Grundnorm and Harts rule of recognition

is far from straightforward. Hart used the phrase, rule of recognition to cover

two very different concepts.28 First, a rule of recognition was taken as any rule

that identified other rules.29 On this interpretation, all modern legal systems

possess multiple rules of recognition. Rules empowering delegated legislation

and attributing authoritative status to certain institutions would count as rules

of recognition. Second, Hart used rule of recognition to signify an ultimate,

supreme rule at the top of the legal system.30 This rule differs fundamentally

from all other rules in the Hartian system. It can only be discerned from the

conduct of officials (normally the judges), and it cannot be found within legal

sources.31

The first use of rule of recognition is unproblematic. We can identifysuch rules in the pronouncements of judges and in the texts of statutes. The

second sense is highly confusing. It is this version of the rule of recognition that

will be discussed in the rest of this section.

Like Kelsens Grundnorm, the rule of recognition served as a rule, or stan-

dard,32 against which purported legal norms could be tested. A rule only counted

as a legal rule if it met the requirements of the rule of recognition. So, to simplify

for the purpose of example, an enactment of Parliament is only a law if it has

been passed by both Houses of Parliament and given the Royal assent. Harts

rule of recognition unified the legal system.33 As with the Grundnorm, the rule

of recognition provided a common test by which diverse legal rules are shown

to form part of a single legal system. It is therefore necessary that each distinct

26Above n 22 at 110, 367; H. Kelsen, Introduction to the Problems of Legal Theory (transl. S. Paulson, 1992) 64;

H. L. A. Hart, Kelsens Doctrine of Unity of Law in H. Hart (ed.), Essays in Jurisprudence and Philosophy (1983)

33842. Harris exclusion principle performs a similar function: above n 21 at 10, 4143, 71.27

Above n 22 at 11617; above n 21 at 789; S. Paulson, Introduction, at xxxxlii, in Kelsen, above n 26.28

M. Bayles, Harts Legal Philosophy (1992) 79.29

Hart, above n 9, especially 946.30

Hart, above n 9, especially 1057; also: H. L. A. Hart, Legal Duty and Obligation in H. L. A. Hart (ed.),Essays on Bentham (1982) 155, n 77.

31Though it may be reflected in them: Hart, above n 9 at 10811.

32Above n 28 at 667.

33Hart, above n 9 at 11315.


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legal system possess a distinct, single, rule of recognition.34 If it were shown that

more than one rule of recognition existed within a defined geographic area, that

area would be subject to multiple legal systems.

When we try to identify the content of the rule of recognition in the English

legal system, or indeed in any real legal system, problems arise. If the rule of

recognition is to do all that Hart hopes, it must be a complicated set of criteria,

containing many different tests for valid legal norms. In the English system, the

list of criteria would include rules passed by both Houses of Parliament and

given Royal assent, the various forms of delegated legislative powers, decisions

of the courts, and so forth.35 If it is accepted that the rule of recognition consists

of a large number of criteria, the integrity of the rule comes under threat. 36 Itbegins to look like a matter of choice whether the rule of recognition should

be treated as a single rule with many different criteria, or allowed to collapse

into a number of separate norms. Whichever of these paths is chosen, to protect

the Hartian project it must be shown that these criteria, or rules, are related to

each other.37 This relationship could be very simple. It would be sufficient to

show that one rule, or criterion, had priority over the others. If there is no

relationship between these elements the rule of recognition will no longer provide

an account of the identity of the legal system. There would be no supreme

criterion, or rule, at the top of the system. The rule of recognition would collapse

into a number of disparate rules, and, on Harts account, we would be unable

to distinguish between multiple legal systems within a single geographical area,

and a single legal system with multiple, unranked, rules of recognition.A response to this concern might run as follows. The distinction between

multiple, but overlapping, legal systems and a single legal system with multiple

unranked rules of recognition could be made by examining the practices of

officials within the system. This reply succeeds in states where different sets of

officials are applying different sets of laws: for example, in a state where religious

officials applied religious laws, and secular officials applied secular laws. Here

there are multiple systems within a single area. The response is unsuccessful

where the same officials apply the two different rules of recognition, or where

there are two distinct groups of officials, but both groups regarded themselves

as part of the same legal system.

This analysis demonstrates why the theories of sovereignty of Wade and

Heuston fit so well alongside Harts rule of recognition. Their theories of

sovereignty provide a single supreme criterion of what constitutes law. All theother criteria are inferior to this criterion, and consequently are in a relationship

34N. MacCormick, H. L. A. Hart (1981) 1089; N. MacCormick, The Concept of Law and The Concept

of Law (1994) 14 OJLS1 at 1315.35

Above n 28 at 7981; N. MacCormick, H. L. A. Hart(1981) 11011; see also K. Greenwalt, Harts Rule

of Recognition and the United States (1988) 1 Ratio Juris 40; R. Sartorius, Harts Concept of Law in R.

Summers (ed.), More Essays in Legal Philosophy (1971).36

J. Eekelaar, Principles of Revolutionary Legality in A. Simpson (ed.),Oxford Essays on Jurisprudence (Second

Series) (1973) 357.37

N. MacCormick, After Sovereignty: Understanding Constitutional Change (1998) Kings College LR 20 at

24.


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with it. An examination of the English legal system demonstrates that this

contention is false, and that neither Kelsens Grundnorm nor Harts rule of

recognition can be accepted as universal truths of legal systems.

It can easily be demonstrated that the English legal system possesses multiple

unranked sources of legal power. The area of parliamentary privilege has long

been a source of perplexity for constitutional lawyers. The House of Commons

possesses various privileges, of which its right of freedom of speech is probably

the most important. Nothing that is said in the House may be called into question

in the courts; Members of Parliament are not subject to civil suit for their

speeches in the chamber. This does not mean that they are immune from the

law. The law binds Members, even within the chamber. But even though suchlaw exists, it is not for the courts to apply it when it falls within the realm of

privilege.38 This much is uncontroversial, and may be easily reconciled with the

traditional theories of sovereignty: the courts permit the Commons exclusive

powers of interpretation within a limited area. The issue becomes interesting

when we turn our attention to the scope of parliamentary privilege. The Commons

and the courts have never reached agreement on who should be the ultimate

arbiter of the scope of privilege. The courts regard themselves as the final judge

of privilege. In their view, it is only once a matter is shown to be subject to

privilege that it falls within the exclusive jurisdiction of the Commons.39 The

House of Commons, however, has maintained that it is for it to determine

whether or not a matter is touched by privilege. 40 This state of affairs led Keir

and Lawson to declare that there may be at any given moment two doctrinesof privilege, one held by the courts, the other one by either House, the one to

be found in the Law Reports, the other in Hansard, and no way of resolving the

real point in issue should conflict arise.41

In his early work on legal systems Kelsen argued that valid norms could not

contradict.42 This view is still adhered to by Harris, one of the leading modern

followers of Kelsen.43 The above example shows that is perfectly possible for a

mature legal system to contain contradictory norms. One rule, endorsed by the

38Stockdale v Hansard(1839) 9 Ad And E 1, esp. 114, 112 ER 1112.

39Ibid, esp. 165; Bradlaugh v Gosset(1884) 12 QBD 271, esp. 27880; Hamilton v Al Fayed[1999] 3 All ER

317 at 334; S. de Smith, Parliamentary Privilege and the Bill of Rights (1958) 21 MLR 465; A. Denning,

Memorandum on The Strauss Case (1985) PL 80.40

E. May,Parliamentary Practice(22nd edn, 1997) ch 10; CJ (170204) 308; CJ (1837) 418420; M. L. Gwyer,

Ansons Law and Custom of the Constitution (5th edn, 1922) 1923; C. R. Munro, Studies in Constitutional Law

(1987) 14850.41

H. Keir and F. H. Lawson, Cases in Constitutional Law(6th edn, 1979) 255. The wording is the same in the

5th edition (1967) 267, the last to include Keir as a joint author. The view is also supported by de Smith, above

n 39 at 471; E. May, Parliamentary Practice (20th edn, 1983) at 203, cited in C. Munro, Essays in Constitutional

Law (1987).42

Above n 22 at 4078. In his later work he abandoned this view: H. Kelsen, General Theory of Norms (transl.

M. Hartney, 1991) 21325, but he maintained his adherence to the uniqueness of the Grundnorm (at 255).43

J. Harris, Kelsen and Normative Consistency in R. Tur and W. Twining (eds),Essays on Kelsen (1986). See

also S. Paulson, On the Status of the Lex PosteriorDerogating Rule in the same volume. Raz provides a more

profound objection to this line of thought than is argued for here: see Raz, above n 2 at 225. See also T. Honore,

How is Law Possible? Making Law Bind (1987) 23: though Honore accepts that there are multiple rules of

recognition, he remains faithful to Harts project in insisting that these multiple rules never produce insoluble

conflicts between the laws they purport to validate.


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judges, holds that the courts possess exclusive jurisdiction to determine the

validity of a claim of privilege. Another rule, endorsed by the Commons, holds

that the Commons possesses exclusive jurisdiction to determine the validity of

a claim of privilege. These two sets of officials are united in their belief that they

are part of a single legal system, and that they are each under a legal obligation

to apply the same set of rules.44 The two institutions cannot both possess exclusive

jurisdiction; the two norms are contradictory. In a recent article Harris moves

from the sound claim that legal systems generally do not contain contradictory

norms to the unsound claim that there is something inherent in the concept of

a legal system that prevents valid norms from ever contradicting each other. He

argues that a system in which such norms existed would not be a legal systemas we understand it.45 This seems plausible if we try to imagine contradictory

norms in the realm of tort or criminal law, but there can be good political reasons

to allow the existence of contradictory norms in other areas of law. In the

example given above, neither the House of Commons nor the courts are willing

to cede supremacy. The institutional conflict is resolved by allowing a stand-off;

both rules can exist, provided that each institution is cautious about asserting

its strict legal rights.46

Where does this leave the Grundnorm? Kelsens claim that the Grundnorm

identifies a particular constitution or custom seems indefensible. There is no

common constitution or custom that empowers the Commons and the courts;

they claim their validity from separate sources. Recent scholars, in particular

MacCormick,47

have attempted to reconceptualize the Grundnorm as an injunctionto obey the law! Consquently, the second of the Grundnorms functions is

retained, it is still the fundamental presupposition of legal reasoning, but the

first of the Grundnorms functions is lost. The Grundnorm is the same in all legal

systems; it no longer identifies a particular constitution. In part MacCormicks

motivation for endorsing the Grundnorm is, perhaps, the increasingly obvious

inadequacies of the Hartian rule of recognition.48 The Grundnorm fills the role

of a single supreme rule, whilst the rule of recognition collapses into a plethora

of unrelated rules identifying various unranked legal sources. However, this

revisedGrundnorm is a very weak unifier: it is merely another way of expressing

44In this way the example differs from a state which contained secular laws applied by secular courts and

religious laws applied by religious courts. In such a situation two legal systems would exist in a single geographic

area. The judges and the House of Commons, in contrast, regard themselves as part of the same legal system

applying, with the exception of the disputed empowering rule, the same set of laws.45

Harris, n 43 at 2234.46

Compare the ambiguity surrounding the competence of the European Court of Justice and the national

courts of Member States: C. Richmond, Preserving the Identity Crisis (1997) 16 Law and Philosophy 367 at

41520; I. Ward, The European Constitution and the Nation State (1996) 16 OJLS161 at 1645.47


N. MacCormick, Beyond the Sovereign State (1993) 56 MLR 1, esp. at 810; also J. Harris, When and

Why Does the Grundnorm Change? (1971) 29 CL J 103 at 109. In some of MacCormicks earlier work the rule

of recognition seems to be elevated to fill the role of the Grundnorm: see N. MacCormick, Jurisprudence and the

Constitution (1983)CLP 13 at 26; N. MacCormick, The Concept of Law and The Concept of Law (1994)

14OJLS1 at 15.


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the truism that it is in the nature of law that it demands obedience. It cannot

serve to distinguish one legal system from another.49

The example of parliamentary privilege shows that legal systems can, and do,

contain multiple unranked sources of legal power. In Hartian terms, we could

conceptualize this either as two, unranked rules of recognition, or as a single

rule of recognition containing two unranked criteria. Hart and the sovereignty

theorists could thus still argue that the English system possesses an ultimate rule

of recognition: the claims of the Commons and the courts could be overridden

by Parliament.50 A further example can be given which casts doubt on this claim.

Parliament and the European Communities are also, in part, unranked sources

within the English legal system. The precise legal relationship of these bodies asa matter of English law has yet to be conclusively determined. 51 The case of

Factortame52 has thrown the law into confusion. The courts must now suspend

an Act of Parliament when it conflicts with Treaty articles, but it is not possible

to state for certain how far this duty extends. It is arguable that in the case of a

deliberate, but not express, breach the Act would not be suspended. It is also

arguable, more strongly, that if an Act expressly stated it was contrary to European

law the English courts would hold it valid. The present law does not resolve

these questions.53 In some areas, European law and Parliament have become

unranked sources of law. Provided that practical conflict between the two rules

is avoided, the English legal system can avoid ranking these sources of law. 54 In

the example of parliamentary privilege, Parliament could, by legislation, resolve

the conflict between the courts and the House of Commons. In the presentexample such a resolution is not, as a matter of law, possible. The conflict is

between two rules of recognition, both of which claim supremacy. There is no

higher legal power which can resolve the contest.

This discussion has importance both at the level of abstract jurisprudence,

and for English constitutional theory. At the abstract level, it shows that it is a

mistake to assume that it is either a logical or empirical necessity for a legal

system to give supreme legal force to one institution, or to have a legal rule that

will, or can, decisively resolve conflict between different legal sources. The

answers given by Hart55 and Kelsen56 to the question of the identity of a legal

system have failed. Without this support, the work of the sovereignty theorists

49J. Eekelaar, Principles of Revolutionary Legality in A. Simpson (ed.),Oxford Essays on Jurisprudence (Second

Series) (1973) 256.50 But note that this would require Hart to abandon his view that ambiguities in the rule of recognition can

always be resolved by the courts: Hart, above n 9 at 148.51

P. Craig, Report on the United Kingdom in A. Slaughter, A. Sweet, and J. Weiler (eds), The European Courts

and National Courts: Doctrine and Jurisprudence(1997) 2069.52

R v Secretary of State for Transport, ex parte Factortame (No.2) [1991] AC 603. For an insightful analysis of

Factortame, see P. Craig, Sovereignty of the United Kingdom after Factortame (1991) 11 Yearbook of European

Law 221.53

N. MacCormick, Beyond the Sovereign State (1993) 56 MLR 1 at 810.54

This stand-off is even more apparent in the German jurisprudence. See J. Kokott, Report on Germany in

A. Slaughter, A. Sweet, and J. Weiler (eds), The European Courts and National Courts: Doctrine and Jurisprudence

(1997) and Brunner[1994] 1 CMLR 57.55

Hart, above n 9 at 103.56

H. Kelsen, Introduction to the Problems of Legal Theory (transl. S. Paulson, 1994) 64.


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is weakened. There is no reason to suppose, as both Wade and Heuston have

done, that there is a decisive ranking of legal sources within the English legal

system. Contrawise, there is good reason to suppose that the English legal system

does contain several areas in which legal sources are unranked, and where the

courts lack the legal materials to resolve conflicts between different sources of

law. A movement towards this way of looking at legal systems can be seen in

MacCormicks recent work. He points towards a more exciting understanding

of legal systems; a world in which legal systems over-lap in a non-hierarchical

fashion,57 and in which law can exist separately from the state. 58

B. The second objection: the statutes of Parliament need not constituteabsolute exclusionary reasons

Statutory provisions are often a combination of a first- and a second-order

reason.59 The first-order reason is a reason for action. The second-order reason

is an exclusionary reason that shuts out consideration of some other first-order

reasons.60 For instance, the law requiring seat-belts to be worn in cars provides

a first-order reason to wear the belt, combined with a second-order reason not

to consider the other reasons that might bear on the decision. It is necessary to

distinguish further those reasons for action which are conclusive, from those

reasons for action which are absolute.61

The sovereignty theorists did not argue that statutes were always conclusive

reasons for action. A reason for action is conclusive if it requires action withoutany supplementary reasons. A statute would provide a conclusive reason for

action if it excluded all other reasons bearing on the decision, and provided a

reason to act in a certain way. Though this will sometimes be the case, often

the statute will require interpretation by the court. The better view is that the

sovereignty theorists thought that the most recent statute, of necessity, provided

absolute reasons for action. A reason for action is absolute if it excludes all

reasons that conflict with it. This means that the statute would exclude all those

reasons for action that are contrary to the first-order reasons for action contained

in the statutes text. There is no logical necessity for statutes to constitute

absolute reasons for action. Indeed, it is an uncontroversial rule of statutory

construction that an older statute on a topic must give way to a newer statute.62

On the classical model of statutory construction, endorsed by the sovereignty

theorists, the most recent statute has absolute force, shutting out all reasons

57Above n 53.

58N. MacCormick, Institutional Normative Order: A Conception of Law (1997) 82 Cornell LR 1051; also W.

Eward, Comment on MacCormick (1997) 82 Cornell LR 1071.59

As we will see, sometimes a rule of law can consist entirely of exclusionary reasons; a reason not to act for

reasons.60

J. Raz, Practical Reason and Norms (2nd edn, 1990) especially 3548, 736, 1416, 1826.61

This distinction is my own, and drawn for the convenience of this article.62

I am grateful to Adam Green for pointing this out to me.


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bearing on the reason contained within it, but old statutes have limited ex-

clusionary force. They cannot exclude the reasons contained in subsequent

statutes.

It is quite possible to imagine a system in which even the most recent statutes

only had limited exclusionary force. Imagine a world in which the legislature

was prone to passing statutes ordering the execution of blue-eyed babies, realizing

the folly of this only after terrible slaughter. The legislature passes a statute to

prevent itself making such a mistake again. The statute reads:

Statutes that permit or require the execution of blue-eyed babies must be declared

invalid by the courts.

A year later, the legislature has a rush of blood to the head and passes another

statute ordering the death of blue-eyed babies. The judges, with great relief,

invoke the earlier statute and declare that the later statute must be ignored. The

first statute has been given three areas of legal effect. All of these are exclusionary

reasons in Razian terms:

1. The protective statute requires the judge to ignore the purported reason

to kill the babies contained in the killing statute.

2. The protective statute requires that the judge ignore the full claims of the

exclusionary reason contained within the killing statute. The killing statute

must not been taken to exclude the reason contrary to it contained within

the protective statute.3. The protective statute contains a wider exclusionary reason not to act on

any reasons contrary to the other exclusionary reasons (expressed at 1 and

2 above) contained within the protective statute: for instance, the thought

that killing babies could save money for the state, or that the democratic

will of the legislature should always be obeyed by the judges.

Does the second, ineffective, statute have any legal force at all? It would seem

that it has some, limited, legal effect. The second statute can only be set aside

because of the first. The judges could not, legally, set aside the second statute

for other reasons. They could not, for example, declare the second statute invalid

because it damaged the countrys international reputation, or because killing the

babies would be an unproductive use of state officials time. The second-order

exclusionary force of the killing statute is not, therefore, entirely removed by theprotective statute. It has some residual force.

There is a clear analogy to be drawn between this example and the way in

which the European Communities Act 1972 was treated inFactortame. Following

Factortame, the most recent statute need not constitute an absolute reason for

decision. Statutes retain some exclusionary force, but they cannot exclude

contrary provisions of directly effective European law. In Factortame, the Mer-

chant Shipping Act 1988 provided that fishing boats could only be registered as

British vessels if they were three-quarters owned by British companies, and


12/24


three-quarters of the directors were British citizens.63 When the court was called

on to considered the validity of the 1988 statute, certain conflicting first-order

reasons were excluded, such as, for example, that the measure would reduce the

income generated by the registration of foreign boats, or that the Spanish

fishermen would be upset by the rule. The statute did not, however, exclude

considerations of European law; in particular Articles 52 to 58 of the European

Community Treaty. The 1972 Act functions like the protective statute in the

baby-killing case. Having decided that the 1988 Act was contrary to directly

effective Community law, the 1972 Act was then taken to require that the judges

ignore the purported reasons for action contained within the 1988 Act.

Even if the sovereignty theorists were right to ascribe statute the force of anabsolute reason for decision before Factortame, it is clear that this is no longer

the case. The decision of the House of Lords has enabled the 1972 Act to limit

the exclusionary force of statute, and judges are now entitled, indeed obliged by

the law, to consider some reasons that run contrary to statute.

To recap: two fundamental flaws have been exposed in the reasoning of the

sovereignty theorists. First, they were wrong in supposing that a legal system

must possess a single supreme law-making institution. A legal system can contain

a plurality of unranked sources, identified by irreconcilable rules of recognition.

If these rules do not produce conflict, or do not often produce conflict, legal

systems may easily contain them. Secondly, the theorists were wrong to assume

that statutes have the force of absolute reasons; or, if they were not wrong to

assume this when writing, this assumption cannot be maintained afterFactortame.Both these criticisms tackle the sovereignty theorists on their home ground. Both

assume that a satisfactory explanation of the relationship between the courts and

Parliament can be given by examining a cross-slice of constitutional history;

focusing on a particular moment in time. A further, deeper, objection will develop

in the remainder of the essay: that even this assumption is flawed. A full

understanding of the relationship must be able to explain how this relationship

can change over time.

3. A More Complex Model of Judicial Reaction to Statutes

Any satisfactory explanation of the relationship between the judges and Par-

liament will require a far more complex model than that used by the sovereignty

theorists. There are six different ways in which a judge may react to a relevantstatute:

(i) the judge may apply the statute;

(ii) the judge may develop the statute in a manner required by the law;

(iii) the judge may develop the statute in a manner not required by the law;

(iv) the judge may develop the statute in a manner forbidden by law;

(v) the judge may change the statute in a manner required by the law;

63Section 14(7). The facts of the case have been greatly simplified for the purposes of this example.


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(vi) the judge may change the statute in a manner not required by the law.

I believe this list to be complete, although it will often be impossible to decide

into which category a particular case should be put.

A. Application of the statute

A judge applies the statute when she decides that the facts of the case fall within

the central meaning of the statutes text. She treats the statute as providing a

conclusive reason for her decision. There is no need for her to resort to other

sources of law to clarify the text.

B. Development of the statute in a manner required by law

When the text of the statute is vague, or possesses multiple possible in-

terpretations, the judge must develop the statute. That is, she clarifies the text

by preferring one meaning over another, or she authoritatively states that a vague

term covers a particular situation. In such a case the statute is treated as providing

an absolute reason for decision, but it does not, in itself, provide a conclusive

reason for decision. Where development of the statute is required by the law,

the law, but not the statute, may provide a conclusive reason for action.

Development is required by the law when a pre-existing rule of interpretation is

applicable. For example, when the word he appears in a statute it could be

interpreted as signifying the gender-neutral use of he, or the masculine use of

he. This ambiguity is resolved by another rule of law, contained within theInterpretation Act 1978, s 6(a), which conclusively gives preference to the former

construction.

C. Development of the statute in a manner not required by law

Sometimes the law fails to provide a conclusive reason for decision. The statute

is vague, or uncertain, and rules of interpretation fail to resolve the matter. In

such a situation there is a gap in the law. This does not mean that the judge

has unfettered discretion to do as she pleases. She may still be guided by legal

reasons, even if these are not decisive.64 The law may restrict her options for

developing the statute by authoritatively ruling out certain possible in-

terpretations, or by indicating that some solutions are preferable to others. 65

D. Development of the statute in a manner forbidden by law

It is possible to imagine a situation in which the statute was capable of multiple

meanings, but although another rule of law authoritatively preferred one meaning

64J. Gardner, Legal Sources and Permissive Gaps (1988) 8 OJLS457.

65A good example of such a case is BP Exploration Co. (Libya) v Hunt (No. 2) [1979] 1 WLR 783 in which

Robert Goff J considered the implications of The Law Reform (Frustrated Contracts) Act 1943, drawing on

general principles of unjust enrichment to interpret the Acts meaning. His development of the Act was not required

by the law, but was within the bounds of the possibilities left open by the statute. See further, A. Haycroft and

D. Waksman, Frustration and Restitution [1984] JBL 207, and the comments of the Court of Appeal in the

same case at [1981] 1 WLR 232, especially 243.


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to the other the judge still adopted the alternative meaning. The law, but not

the statute alone, would provide a conclusive reason for a particular decision.

By adopting the alternative meaning the judge would have developed the statute,

but changed the law. I am not aware of such an instance in English law, but it

is a logically possible occurrence.

E. Changing the statute in a manner required by the law

A judge changes the statute in accordance with the law when the statute is clear

and unambiguous, but another rule of law limits its exclusionary scope and

directs action contrary to the reason contained within the statute.66 According

to classical sovereignty theorists this should only happen in the English system

when an older statute gives way to a newer statute. Otherwise statutes were the

supreme source of law, and took precedence over all conflicting legal rules. Until

recently this position might have been defensible; Factortame shows that it is no

longer true. In the Factortame case the House of Lords effectively declared that

the exclusionary reach of statutes had been limited by the European Communities

Act 1972. The Merchant Shipping Act 1988, though the most recent statute

bearing on the situation, was not an absolute reason for decision; it did not shut

out all those reasons that were in conflict with it. The conflicting reason for

decision contained within the EC Treaty remained valid and binding on the

court. The EC Treaty, through the 1972 Act, provided a conclusive reason for

decision. It required that the court strike down the statute, and further excluded

the court from considering reasons contrary to this course of action. FollowingFactortame, any English statute may have limited exclusionary scope. If it conflicts

with directly effective European Treaty provisions it will not provide an absolute

reason for action.67

F. Changing statutes in a manner not required by the law

When judges change statutes in a manner not required by the law, the law on

the case before the judge is clear, but she nevertheless changes the statute in

order to produce a different result. Before examining the cases within this section,

a word of warning must be given. Though it is a relatively safe contention that

judges have sometimes changed statutes, demonstrating that this has occurred

in any particular case will always be controversial. Judges have sworn an oath

to apply the law, and any alteration to statutes not permitted by the law will bea breach of that oath. Consequently, there are no cases in which judges have

expressly changed statutes contrary to the law. All the cases cited below are

66The boundary between development and change is endlessly contestable, and it is not part of my task in

this article to attempt to defend any particular version of the divide. All I seek to contend here is that a difference

can be drawn between adopting a particular reading of a statute when there are multiple possible readings, and

changing the statute by adopting a view of the law that cannot be reconciled with the text.67

It is possible that this category of judicial action will become more significant as supporters of human rights

become more powerful. See J. Laws, The Constitution: Morals and Rights (1996) PL 622; T. Allan, The Limits

of Parliamentary Sovereignty (1985) PL 614.


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therefore contestable. All that I seek to establish for the moment is the existence

and the outline structure of the sixth category. My reading of the cases can be

challenged without these contentions being questioned.

There are two groups of examples of judges changing statutes in ways not

required by the law. One group is less radical than the other. The less radical

collection of examples are those in which a judge has preferred an earlier Act of

Parliament to a later one. In such instances the judge has rejected that aspect

of the sovereignty theories which holds that the most recent Act of Parliament

has supreme legal force, but still accords Parliament the position of supreme

legal source within the system. In the more radical category are those cases in

which the judge denies Parliament the role of supreme legal source, and sub-stitutes what she believes the law ought to be for that contained within the

statute.

The Factortame case is a clear instance in which one statute, the 1972 Act,

was given stronger legal force than a later statute, the Merchant Shipping Act

1988.68 At the time of the Factortame decision, there was no legal precedent for

the suspension of an Act of Parliament. The case law that existed strongly

supported the view that an earlier Parliament could not bind a later Parliament. 69

Nevertheless, the House of Lords preferred the 1972 Act to the 1988 Act. In

doing so, they were almost certainly acting for a political, rather than a legal,

reason.70 There is political agreement that Britain will remain part of the European

Union for the foreseeable future. As a consequence of this membership, the

Lords felt that they ought to give precedence to certain aspects of European law.If the House of Lords had denied that they possessed the power to suspend Acts

of Parliament, Britains ability to take part in the European Union would have

been weakened.71 When the House of Lords decided Factortame they acted

contrary to the law as it then stood. However, to decide in accordance with the

law would have had the effect of frustrating the general political consensus on

the European Union. The House of Lords changed the law in order to reflect

this consensus.

The second category of cases provides a more fundamental challenge to the

concept of sovereignty. In these cases the judges have denied the supremacy of

Parliament in order to better achieve a particular moral objective. First, there

are those cases in which judges believe that the statute has become outdated,

and change the statute in order to modernize it.72 Secondly, there are those cases

in which the judges have changed statutes because they find elements of themmorally undesirable.

68See also Chorlton v Lings (1868) LR 4 CP 374; Nairn v University of St Andrews [1909] AC 147; and Att-

Gen v Wilts Dairies (1921) 37 TLR 884, (1922) 91 LJKB 897.69

For example, Vauxhall Estates Ltdv Liverpool Corp. [1932] 1 KB 733; Ellen Street Estates v Minister of Health

[1934] 1 KB 591; Pickin v British Railways Board[1974] AC 765; Duport Steels v Sirs [1980] 1 WLR 142;Manuel

v Att-Gen [1983] Ch 77.70

See especially, Lord Bridges reasoning, above n 52 at 6589.71

T. Allan Parliamentary Sovereignty; Law, Politics, and Revolution (1997) 113 LQR 443 at 445.72

See also F. Bennion, Statutory Interpretation (3rd edn, 1997) section 288 on updating construction.


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Criminal law provides many examples of judges altering statutes in order to

maintain the effectiveness of the law. A particular problem for the judiciary has

been the Offences Against the Person Act 1861. On several occasions the judges

have effectively rewritten the statute in order to protect the efficiency of the

criminal law, causing one academic to describe the Act as a . . . wonderland

where words do not bear their ordinary meanings.73 For instance, bodily harm

has been inflated to include psychiatric harm,74 and inflicts has been judicially

replaced with causes.75 The need for, and good sense of, these changes is

beyond question; nevertheless, they constitute a radical departure from the

orthodoxies of sovereignty. An Act need not be old to have become outdated.76

Sometimes judges have to administer first-aid to quite recent statutes whosewording has proved to be inadequate. Examples of strained construction include

a bicycle that became a carriage,77 and a married woman who discovered, to

her gratitude and surprise, that she was single for the purposes of an Act. 78 More

seriously, in a recent case a psychopath was refused access to his birth certificate

in order to protect his natural mother from harm. The court refused to accept

the apparently unqualified right of access contained within the statute, creating

an exception in situations where the exercise of the statutory right might enable

a crime to be committed.79

Those cases in which judges have changed a statute because the statute

conflicts with their own moral convictions are harder to find. Judges are aware

of the need to preserve an appearance of political impartiality,80 and there is no

case in modern English law in which a court has explicitly altered a statutebecause it regards the statute as immoral. Nevertheless, clear examples of such

activity can be given. First, in the recent case of R v R81 the House of Lords

expanded the law of rape to include husbands who raped their wives. If one

reads the reasoning of Lord Keith, it appears that nothing constitutionally

unusual has occurred; the case is presented as a normal exercise in statutory

construction. The statutory provision in question was section 1(1) of the Sexual

Offences (Amendment) Act 1956. This stated:

For the purposes of section 1 of the Sexual Offences Act 1956 . . . a man commits

rape if

(a) he has unlawfulsexual intercourse with a woman who at the time of the intercourse

does not consent to it; and

73G. Virgo, Offences Against the PersonDo It Yourself Law Reform (1997) CLJ251.

74Offences Against the Person Act 1861, s 20;Chan-Fook [1994] 1 WLR 689.

75Offences Against the Person Act 1861, s 20;Burslow [1997] 1 Cr App R 144.

76Above n 72, sections 158 and 287; also S. Hiranandani, Legislative Drafting: An Indian View (1964) 27

MLR 1.77

Taylorv Goodwin (1879) 4 QBD 228.78

R v Pilkington (1853) 2 El & Bl 546; 118 ER 872.79

R v Registrar General, ex parte Smith [1991] 1 FLR 255.80

See in particular Magor & S. Mellons RDCv Newport Corporation [1952] AC 189, perLord Simonds at 191;

Duport Steels v Sirs [1980] 1 WLR 142, perLord Diplock at 157, Lord Keith at 168; R v HM Treasury, ex parte

Smedley [1985] QB 657, perSir John Donaldson MR at 666.81

[1992] 1 AC 599.


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(b) at that time he knows that she does not consent to the intercourse or he is

reckless as to whether she consents to it. 82

The use of the word unlawful prefixed and qualified the following definition

of non-consensual intercourse. A plain reading of the statute would entail that

certain types of non-consensual intercourse were legal. It was commonly believed

within the legal world that the word had been inserted to preserve the common

law rule that a husband could not be criminally liable for raping his wife. 83 When

the Criminal Law Revision Committee reconsidered the issue of marital rape

they assumed that the wording of the Act maintained the immunity. They

supported the perceived approach of the 1976 Parliament, and recommended

the rule be retained.84 When Lord Keith considered the section he declared that

unlawful was mere surplusage85 and added nothing to the meaning of the

section. His reading of the statute ran contrary to normal principles of con-

struction, which hold that in criminal cases ambiguous statutes should always

be interpreted in favour of the accused.86 Lord Keith was unable to cite any

legal authority for the proposition that a husband could commit rape against his

wife. The principal reason he gave for his decision was that in modern times

any reasonable person must regard that conception (the immunity) as quite

unacceptable . . ..87 This is a moral, not a legal, reason for the decision.

The House of Lords did not admit that they were changing the law in R v R.

Had they done so, difficult questions about retrospective criminalization would

have been raised. When the case was taken to the European Court of Human

Rights88

a strong case was put forward under Article 7, claiming that thedefendants could not have known that rape within marriage constituted a crime.

Though the court rejected their claims, the judges found it hard to argue that

Lord Keith had not changed the law. They upheld the decision on the basis that

the change was foreseeable and, more importantly, that the rights of the wife of

the marital rapist also need protection.89

The change effected by the Lords had retrospective effect. Not only would

future marital rapists find themselves caught by the criminal law but earlier

offences were also criminalized; judges in future cases would be obliged to hold

that the rule set down in R v R existed prior to that decision. Though the judges

may be unable to admit that the law had changed, commentators at the time

had little doubt that R v R was an example of judicial law-making, and that a

82My emphasis.

83For judicial endorsement of the rule, see Sir Matthew Hale, History of the Pleas of the Crown (1736) Vol. 1 at

629; R v Cogan and Leek [1976] QB 217; R v Steele (1977) 66 Cr App R 22; R v Caswell[1984] Crim LR 111.84

Fifteenth Report, Sexual Offences (Cm 9213) paras 2.642.69; see also J. Tempkin, Rape and the Legal

Process(1987) 6093.85


Secretary of State for Social Security v Tunnicliffe [1991] 2 All ER 712; above n 72, section 271.87


S. W. v United Kingdom, Judgment of 22 November 1995, Series A no. 335-B; C.R. v United Kingdom,

Judgment of 22 November 1995, Series A no. 335-C.89

S. W., above n 88 at para 44; C.R., above n 88 at para 42.


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statute had been changed contrary to the will of the enacting Parliament. 90 This

was not a case in which an old statute was altered by the courts to catch up

with developed popular morality. The statute was only 14 years old, and the

Criminal Law Revision Committee had supported the exemption as recently as

1984. Support for the change in the academic world was far from unanimous.91

In R v R the House of Lords changed a statute because they believed the result

produced by that statute was immoral. It is impossible to reconcile the decision

with the classic models of sovereignty.

Examples of judicial activism of this type could be multiplied. In the sphere

of labour law, the judges and Parliament conducted a running battle during the

first part of this century over the liability of trade unions. Parliament repeatedlyattempted to confer immunity on trade unions, only to see the judges circumvent

this immunity by devising novel forms of liability that lay just outside the statutes

reach.92 The common law judges did not believe that the trade unions ought to

be permitted to cause damage to employers, and escape liability for the harm

done. They believed, like Lord Keith in R v R, that the statutes pursued a

morally repugnant objective. Through the common law, they altered the practical

effect of the legislation, ensuring that the unions remained liable for harm, and

the employers position was protected. Similarly, ouster clauses in statutes have

long suffered from exceptionally narrow construction;93 the judges eager to

protect the citizens right of access to the courts. 94

Allan has also recognized the existence of judicial activities of this nature.

However, he relies on these cases to support a number of propositions that goa good deal further than the claims argued for here. First, he claims that

theorists are compelled to either hold such activism as legally sanctioned, or as

illegitimate.95 According to Allan, a positivist understanding of law not only

requires us to hold that law is to be found only in legal sources, but also that

judges duty to apply law is absolute.96 If judges do engage in the activities set

out in the earlier part of this section, and it is assumed that these activities are

legitimate, two consequences follow. First, the law must already contain some

principles justifying the decisions. Secondly, positivism is shown to be an

inadequate theory of law, unable to accommodate the existence of such principles.

90M. Giles, Judicial Law-making in the Criminal Court [1992] Crim LR407; J. Barton, The Story of Marital

Rape [1992] 108 LQR 260.91

G. Williams, Rape is Rape (1992) 142 NLJ11; responded to in H. Fenwick, Marital Rights or Partial

Immunity? (1992) 142 NLJ831.92 See the Criminal Law Amendment Act 1871 and the Trade Union Act 1871; R v Bunn (1872) 12 Cox 316,

addressed by the Conspiracy and Protection of Property Act 1875, s 3;Quinnv Leathem[1901] AC 495, addressed

by the Trade Disputes Act 1906,s 1; Rookes v Barnard [1964] AC 1129, addressed by the Trade Disputes Act

1965; Torquay Hotel Lt. v Cousins [1969] 2 Ch 106, addressed by the Trade Unions and Labour Relations Act

1974.93

See generally P. Craig, Administrative Law (3rd edn, 1994) ch 16; and R v Medical Appeals Tribunal, ex parte

Gilmore[1957] 1 QB 574; Anisminic Ltdv Foreign Compensation Commission[1969] 1 AC 147; South East Asia Fire

Bricks v Non-Metallic Products [1981] AC 363.94

See also R. Cooke, The Struggle For Simplicity in Administrative Law in M.Taggart (ed.), Judicial Review

of Administrative Action in the 1980s (1986) 10, for a surprisingly frank judicial discussion, and R v Lord Chancellors

Department, ex parte Witham [1998] QB 575.95

T. Allan, Parliamentary Sovereignty: Law, Politics, and Revolution (1997) 113 LQR 443 at 445, 448.96

Above n 71 at 616.


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Allan then develops various constitutional principles from notions such as

democracy and political morality, that he argues already form part of the law. 97

Parliament must be taken to have legislated in accordance with these principles

in order to uphold the sovereignty of the people.98

It is impossible to do justice to Allans contentions here. However, it must be

noted that his analysis of the cases, and of positivism,99 is unsatisfactory in a

number of respects. First, there is no reason why a positivist should necessarily

endorse the view that a decision made by a judge is either legally legitimate or

illegitimate. A positivist might argue that the law required a particular decision

but that the judge, as an officer of the state in a position to wield de facto power,

ought to decide to the contrary. Positivism ought not to be confused with legalconservatism. Secondly, by equating change contrary to the law with illegitimate

change, Allan is compelled to argue that the sixth category of judicial activity

does not exist, or, if it does, is of necessity illegitimate. There is no room in

Allans theory for change in the law, only for evolution and interpretation.

This can create some peculiar artificialities: on Allans account, the strongest

presumption of legislative intent would be to deny the statute any application

at all.100

Allans difficulties exemplify the dilemma facing those who would wish to

defend radical decisions of the courts, but struggle to find a legal basis on which

to base their defence. There is a temptation to argue that if a change in the law

was for the good, or necessary, it must have been legally mandated, and reason

backwards to discover a principle or rule justifying the change.

101

Sometimeshigher level legal principles can be shown to exist that can be invoked by courts

to help them in difficult constitutional times.102 This is not always the case.

Sometimes the pressure on the courts to reach a result, even to reach the morally

right result, renders a decision contrary to existing law a necessity. It does not

help us understand these pressures, and the reactions to them, if we pretend

that all such changes are legally mandated. If support for the decision cannot

be found in legal texts, we ought not to invent principles to provide a retrospective

legal justification for the change.

97Ibid at 623.

98T. Allan, Legislative Supremacy and the Rule of Law: Democracy and Constitutionalism (1985) 44 CLJ

111 at 129. See J. Daley, The Bases for the Authority of the Australian Constitution (1999) D Phil thesis, Oxford

University, for a healthily sceptical discussion of constitutional theories premised on the will of the people.99 Like Allan I talk of positivists as a group. Though this is necessary in order to counter his objections, caution

must be exercised when discussing legal theorists in this fashion. There is no organized team of positivists with

common views and agendas.100

Above n 96 at 619; T. Allan, Law, Liberty and Justice (1993) 17, 2679.101

M. Kadish and S. Kadish, Discretion to Disobey: A Study of Departure From Legal Rules (1973) sometimes

steer close to this in their discussion of the jurys right to deliver a perverse verdict: see ch 2. They cautiously

suggest that the office of the judge might also endow her with discretion to disobey mandatory rules in much the

same way as the jury (at 90).102

J. Eekelaar, Principles of Revolutionary Legality in A. Simpson (ed.),Oxford Essays on Jurisprudence (Second

Series) (1973). Eekelaar is on weaker ground in his discussion of the possible judicial reaction to a statute that

expressly derogated from European law, arguing that the value of continuity could provide judges with a legal

reason to change the rules governing legislative competence: J. Eekelaar, TheDeath of Parliamentary SovereigntyA

Comment (1997) 113 LQR 185.


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4. A New Approach to Judicial Legitimacy

There are two responses that could be made to the cases I have set out as

examples of statutory change contrary to law. In so far as my reading of these

cases is accepted, the conduct of the judges could simply be condemned as

constitutionally unacceptable activism. All lawyers know that sometimes judges

make mistakes, that they go beyond the proper bounds of their office, and

trespass into areas that would have been better left to Parliament. But the cases

do not seem to be simple aberrations. They happen too frequently, and are too

easily accepted by those within the legal system to be ignored. If we believe that

in at least some of those cases the judges were acting in some sense legitimately,how can this notion of legitimacy be contained within jurisprudence?

We have already seen how the sovereignty theorists failed to explain many

aspects of the English legal system. They were wrong to assume that the English

legal system must, as a matter of logic, provide a clear ranking of the sources of

law. In some circumstances the ranking may be unclear. The rules of recognition

within the system may identify contradictory norms. Further, the notion that

statutes must provide absolute exclusionary reasons was rejected. It is perfectly

possible for a legal system to allow statutes only limited exclusionary force. After

Factortame this is true of the English legal system. These criticisms of the

sovereignty theorists are powerful, but they do not go to the heart of their

theories. Even when modifications to the sovereignty model are made, the model

still cannot accommodate the decisions of the courts in which statutes are

changed contrary to the law. For such a theory a more radical reform is required.

It is necessary to introduce another distinction put forward by Joseph Raz. 103

Raz distinguishes between theories of momentary and continuing legal systems.

A momentary legal system is a cross-section of a continuing legal system, it

exists at a particular point in time. The criteria for the identity of rules in a

momentary system are contained within the laws of that system. The rules of

recognition tell judges where to find the laws and, generally, how the conflicts

that arise between the sources of law can be resolved. Significantly, these rules

of recognition will not define the boundaries of the legal system; they will not,

as Hart hoped, enable us to distinguish between the legal systems of different

countries. When we look at a continuing legal system, similar questions are

raised. In particular, we will want a test to determine whether two momentary

legal systems form part of a single continuing legal system. It seems likely thata theory of a continuing legal system will be, at least in part, a political theory

about the identity of institutions.104 The way in which we will know whether

two momentary systems form part of one continuing legal system will be by

ascertaining the political continuity of its institutions.105 Similarly, it is these

institutions that draw diverse sets of rules into a single legal system.

103Raz, above n 9 at 345 and ch 8; also J. Finnis, Revolutions and Continuity of Law in A. Simpson (ed.),

Oxford Essays in Jurisprudence (Second Series) (1973); J. Finnis, The Fairy Tales Moral (1999) 115 LQR 170.104

J. Raz, The Inner Logic of the LawEthics in the Public Domain (1994); Finnis, above n 103 at 69.105

J. Raz,The Institutional Nature of Law, above n 3.


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The sovereignty theorists were expounding theories within the constraints of

a model of a momentary legal system. This meant that they were unable to

accommodate changes in the legal rules that could not be explained by reference

to the rules of recognition that were present within their slice of the on-going

English system. Their theories were unable to deal with changes to the law that

occurred contrary to the law. So, for example, after Factortame Wade was forced

to declare that there had been a revolution, and appeared to renounce the entire

enterprise of constitutional law.106 Applying his understanding of sovereignty, any

change in the momentary legal system for which the rules of that system did not

provide was an abandonment of the old legal system in favour of a new legal

system. He was unable to allow a progression between the two slices becausehe lacked a theory of the English legal system as a continuing force. This is like

trying to conduct constitutional theory with one hand tied behind our backs.107

Plainly, a sensible understanding of the relationship between the judges and

Parliament must be able to operate in both areas of theory. It must be able to

show what the law is at any one point, and yet also be able to show how judges

can successfully change the law contrary to the law, within the continuing legal

system.

A developed theory of the English constitution within a model of a continuing

legal system would show that the judges have a dual authority. They act in two

spheres. Their first area of action is the legal sphere. The law108 empowers them

to make decisions in certain ways, and acts as a constraint on their reasoning

processes. This element of their role can be adequately represented within amodel of a momentary legal system. Their second area of action is within the

political sphere. It is this aspect of the judges competency that can be forgotten

if the significance of legal systems as a continuing force is overlooked. Judges

have a political as well as a legal role in the English constitutional framework. In

some situations they appear to be accorded political authority by the constitutional

system to make decisions contrary to the existing law. On rare occasions this

political authority extends to the alteration of statutes of Parliament. Even if the

classical, Wadian, doctrine of sovereignty is, or was, an aspect of the English

legal system it only delimited the legal reasons under which a judge could reach

a decision. The doctrine never prevented the judges from changing statutes for

non-legal reasons. The relationship between the courts and Parliament cannot

be fully captured in terms of a legal analysis. Such an analysis misses the political

identities of Parliament and the courts as institutions within a constitutionalstructure, whose relationship is partly based in brute political power, with the

balance between these institutions shifting over time.

The previous paragraph makes a descriptive claim. It argues that the judges

are, de facto, treated as having authority within the English system. Their authority

106W. Wade, SovereigntyRevolution or Evolution? (1996) 112 LQR 568; see also Eekelaar, above n 102,

and Finnis, above n 103 at 5061.107

Finnis makes a similar criticism of Harts rule of recognition: Finnis, above n 103 at 5561.108

By which I mean both statute rules and common law rules.


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does not run out when their legal power is exhausted. The truth of this factual

statement can be established by reconsidering the cases discussed under category

F above. In all of these cases the decision of the court was accepted by the actors

within the English system, even though it was made contrary to the statute. In

Factortame the provisions of the Merchant Shipping Act were suspended, and

the Spanish fishermen were able to fish under a British flag. In R v R the marital

rapist was jailed. In the labour law cases the unions were compelled to pay the

damages awarded against them. In the judicial-exclusion clause cases the bodies

obeyed the various orders made against them. In these examples, the decisions

of the judges were efficacious, and were regarded as binding by the officials of

the system. The force of these decisions flowed from the judges politicallegitimacy, not from their application of the law.

All that the previous paragraphs contend is that judges wield political, as well

as legal, power. I have described them as having de facto authority because their

exercise of this power can be shown to be effective; the judges are obeyed. I

have not attempted, though I believe a good attempt could be made, to show

that the judges are justified in acting within this political sphere. If such an

attempt were successful it would show that the judges have legitimate authority;

that not only do the judges make decisions contrary to the law, but that they

are right so to do.109 The scope of this authority would depend partly on the

position of the courts in particular societies at particular times. Nevertheless,

the structure and nature of the courts might provide some general limitations

on the type of non-legal reasons that judges ought to be prepared to act on.Though such reasons could be termed political, judges certainly ought not to

be partisan. The debates that are carried on in Parliament cannot be duplicated

in the courts. The courts have a different structure and legitimacy to the House

of Commons. This means that the type of reasoning process they can undertake

should differ fundamentally from that of the legislature. These structural lim-

itations would impose a framework of restraint around the reasons that the

judges could legitimately adopt.

Is the law simply what the judges say it is? It might appear that admitting the

judges operate politically as well as legally is to adopt a crude realist analysis of

the English legal system. This would be a mistake for two reasons. First, admitting

that the courts can alter the law contrary to the law is not the same as saying

that there was no law before they made their decision. Statutes are law even if

they are never raised before a court. When a judge changes the law he alters thelegal world; a comparison of the momentary system before the decision with

another slice taken after the decision would reveal a change in the mesh of legal

rules. We can therefore distinguish between the two questions most often asked

of lawyers: what is the law? and what will the judge decide?. Secondly, judges

make mistakes. They can make legal mistakes when they think they are acting

within the bounds of law, but are actually in error in their understanding of

109I hope to explore this possibility further in a future article.


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those bounds. They can also make political mistakes when they go beyond the

limits of their political authority. The latitude they can exercise towards statutes

depends on various factors, including the political authority of the drafters of

the text, and on the subject matter of the statute. The judges can mistake their

political authority. This happened in Anderton v Ryan,110 in which the House of

Lords effectively ignored a statute that extended criminal liability for attempting

the impossible.111 The decision was contrary to law, but it also transpired that

the decision was politically illegitimate: a bare year later, the House was forced

to overturn the decision.112 It had exceeded the politically acceptable bounds of

judicial activism.

Sometimes when the judges change the law contrary to the law they create alegal reason for altering statutes in future cases. This happened in Factortame.

Readings of Factortame abound, but the best view is that the House of Lords

held that the European Communities Act 1972 had restricted the exclusionary

scope of future statutes. On the law that existed before Factortame, this restriction

should not have been possible. So, on the existing law the 1972 Act should not

have been able to affect the exclusionary scope of the 1988 Act. By changing

the law to enable this restriction the House of Lords created a new legal reason

for action. Their decision altered the criteria for legal validity that would be

applied in future cases. Conflict with directly effective Community law now

provides a legal reason against the validity of the challenged statutes first-order

reason for action. Factortame altered one of the rules of recognition in a way

that was not possible within the pre-existing legal order. This should be contrastedwith R v R. In R v R the law of rape was changed, and to that extent a new

legal reason for decision was created, but the decision did not affect the manner

in which judges should, as a matter of law, interpret statutes. The non-legal

reason for the decision given by Lord Keith was explicitly related to the particular

issue before the court. In future cases the mere fact that a reasonable person

would have regarded a proposition of law as unacceptable will not be a legal

reason against that proposition.

5. Conclusion

Harts rule of recognition remains a useful tool, but must be stripped of its odd,

unrule-like, qualities. A rule of recognition is simply a rule that identifies other

rules. We find these rules in legal sources, such as judgments and statutes. Thismight seem to pose a risk of infinite regress; we can only identify legal sources

110[1985] AC 560. Their decision is described by Professor Clarkson as blatantly ignoring Parliaments

intentions: C. Clarkson,Understanding Criminal Law(1987) 111; see also G. Williams, The Lords and Impossible

Attempts, or Quis Custodiet Ipsos Custodes? [1986] CLJ33.111

Criminal Attempts Act 1981, s 1.112

R v Shivpuri[1987] AC 1 at 20: Lord Bridge ruefully commented: If I could extract from the speech of

Lord Roskill or from my own speech [in Anderton]a clear and coherent principle distinguishing those cases of

attempting the impossible which amount to offences under the statute from those which do not, I should have to

consider carefully on which side of the line the instant case fell. But I have to confess that I can find no such

principle.


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by use of a rule of recognition, but can only know what these rules are by looking

at the sources. The vicious circle can be broken by giving full weight to the

political nature of legal systems. One of the ways in which we identify legislatures

and courts is by the type of power they exercise and the manner in which they

exercise that power. Having identified these institutions, we can then identify

the rules of recognition by looking at what they say the rules of the system are.

If this diverges too far from their practice we can conclude they are lying to us;

but normally it seems appropriate to conclude they will be telling the truth.

I have argued that an adequate account of the relationship between the courts

and Parliament must recognize that judges have a dual authority. They have

legal authority to apply, develop, and change statute within the legal sphere.This activity is governed by the law. They also possess a political authority to

make decisions contrary to the law, a political authority that they have exercised

on many occasions over the last century. It is only by adopting this dualist model

that we can begin to understand when, and why, the judges change statute law.

sovereignty re-examined. the courts, parliament, and statutes

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