Sovereignty Re-visited

Staff Research Seminar: Dr. Alison Young (University of Oxford)

Abstract:

Sovereignty raises a number of questions. At the most abstract level, there is the search to understand sovereignty, both as a concept and its various conceptions. We can also assess the value or utility of the concept of sovereignty, and its various conceptions, to our analysis of states or supra-national entities such as the European Union, as well as its utility as an organising principle of International law. At its most practical level, we can examine which conception of sovereignty, if any, has been adopted by the courts. Confusion often arises when we fail to separate out these different questions; particularly when we fail to clarify our conception of sovereignty when discussing its normative appeal or utility, or when determining which conception of sovereignty has been adopted in the case law.

This paper aims to explore the inter-relationship between the concept of sovereignty, its various conceptions, and its utility and normative value in United Kingdom constitutional law. In doing so, it will build on the work of Loughlin and Walker. It will argue that Martin Loughlin's analysis provides an account of the concept of sovereignty, but that his focus on sovereignty as a 'legal' concept, connected to the State, is best understood as a particular conception of sovereignty, as opposed to an aspect of the concept of sovereignty itself. Building on the work of Neil Walker, the chapter will argue that a concept of sovereignty has to include an analysis of the political and the legal dimension of sovereignty, as well as the relationship between the two. At the conceptual level, sovereignty is best understood as an abstract concept which serves to legitimate legal and political power. It also has a dynamic dimension; it vests neither in the people, nor the institutions of government, but in the inter-relationship between the two.  

Second, the paper will apply this conception of sovereignty to the United Kingdom constitution. It will argue that 'sovereignty', when interpreted as an assertion of the authority to determine the content of constitutive rules, is bipolar. Both the courts and the legislature claim to have the authority to determine constitutive rules. Although both have sufficient power to meet the threshold of authority, neither possesses sufficient legitimate power to make good on these claims. As such, although both the legislature and the court may initiate changes to constitutive rules, both need to agree to such changes for the change to have both legal and political legitimacy. It will argue that, to preserve this form of bipolar sovereignty, Dicey's conception of continuing parliamentary legislative supremacy needs to be adopted as a rule of domestic law. Parliament cannot bind its successors as to manner and form as to do so may result in making good on Parliament's claim to authoritatively determine constitutive rules.

Third, the chapter will engage with the approach of Jeffrey Goldsworthy. Although my answer to whether constitutive rules can evolve is similar to that of Goldsworthy, it differs in two respects. First, Goldsworthy utilises a different concept of sovereignty, focusing on legislative power. For Goldsworthy, an institution is sovereign if there are no legal limits on the substance of its law-making power. This leads to the second distinction. Goldsworthy justifies Parliament's claim to possess unlimited law-making power because of the principle of democracy. Political legitimacy comes from democracy, which in turn justifies the legal legitimacy of Parliament to enact legislation. However, I argue that sovereignty vests not in Parliament, but in the inter-relationship between the governed and the institutions of government.

Discussant:  Graham Gee

• Staff Research Seminars take place at 1pm in the Senior or Junior Common Room, Birmingham Law School
• A sandwich lunch and a glass of wine will be provided from 12:30 pm
• Postgraduate students and academic staff are welcome to attend.