Sovereignty in British Legal Doctrine

Resumen

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I. Introduction. II. From the lower middle ages to the revolution of 1688. 2.1. Bracton and Fortescue. 2.2. The formulation of parliamentay soverignty under the Tudors. 2.3. Absolutism and Constitutionalism under the Stuarts. 2.4. The Rule of Law and Parliamentary Sovereignty Parliament. III. Sovereignty in John Locke's "Second Treatise on Civil Government". 3.1. Government by the consent of the governed. 3.2. The separation of powers. 3.3. The supremacy and limits of the legislature. 3.4. The sovereignty of the people. IV. From Hume to Paley. 4.1. David Hume, Locke's critic: Parliament is sovereign, not the people. 4.2. William Blackstone's ambivalent attitude. V. From Bentham to Dicey. 5.1. Jeremy Bentham and the sovereignty of the electoral body. 5.2. John Austin and the House of Commons as trustee of the electorate. 5.3. Dicey and the distinction between juridical and political sovereignty.

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Extracto

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Sovereignty in British Legal Doctrine

This article was firstly published in spanish in the first number of "Fundamentos. Cuadernos Monográficos de Teoría del Estado, Derecho Público e Historia Constitucional", Junta General del Principado de Asturias, Oviedo, 1998, pp. 87-165, and intituled as "La soberanía en la doctrina británica: de Bracton a Dicey". This translation into english has been made by Manuel Calzada, Professor of Law at the australian University of Murdoch. The electronic journal of this University, "E-Law", published for the first time the english edition of this article in September 1999 (volume 6, number 3) http://www.murdoch.edu.au/elaw/indices/issue/v6n3.html. I would like to thank prof. Calzada for his splendid translation, that has now only been modified to actualize the bibliography.

I. Introduction

By titling this article 'Sovereignty in British Legal Doctrine' rather than 'The British Doctrine of Sovereignty' I wanted to underline that I am not only going to examine the doctrine of Parliamentary Sovereignty, genuinely British, but also the sovereignty of the people, which is common throughout western juridical and political theory. In reality, it is the juxtaposition between both doctrines of sovereignty that the following pages revolve around, which also address the link between Parliament and Judges or, expressed in a different manner, between the law and its judicial control. For that purpose we are going to analyse no less than six centuries of doctrinal thought, divided into four stages: the first of them extends from the Low Middle Ages to the Revolution of 1688; the second is based on one single author, John Locke, and one single book, "The Second Treatise on Civil Government", the importance of which for the subject matter that is dealt with here was decisive; the third concerns the work of three 18th century authors: Hume, Blackstone and Paley; and, finally, the fourth and last starts with an analysis of Bentham's doctrine, an author sitting between the 18th and 19th centuries, it continues with Austin and ends with Dicey.

British thought on sovereignty was not always linked to the current juridical order. Sometimes it took place on the periphery of that order or even against it, as it happened with Locke and specially with Bentham. In any case what we are interested in is not to examine the way in which the British Juridical order went about regulating sovereignty, but only how the doctrine understood this faculty, to whom it has been attributed and under what conditions. The references to the juridical order or to the institutions that this has created will be, then, those essential to understand the doctrinal thinking regarding sovereignty.

II. From the lower middle ages to the revolution of 1688

2.1. Bracton and Fortescue

The British Doctrine of Parliamentary Sovereignty surges towards the end of the 16th century, when it is attributed to Parliament, and not separately to the Monarch - as it was happening in Western Europe - the supreme or unlimited capacity to approve laws, which is the principal characteristic of sovereignty as it was highlighted - as we shall see later - by the creator of that concept, Jean Bodin.

That being so, it is then no less true that the doctrine of Parliamentary Sovereignty has clear medieval origins, as it was in the Middle Ages that the supremacy of this institution was affirmed in the juridical creation, although the unlimited character of this creation was not totally sustained.

The doctrine of the supremacy of Parliament is, at the same time, intimately linked to the medieval idea of the supremacy of the law - the rule of law - by virtue of which all public powers, including the King, must submit to the law, although at the time what was public and what was private was not clearly distinguished.

The submission of the King to the law was proclaimed by Henry de Bracton in De Legibus et Consuetudinibus Angliae, possibly written between 1272 and 12771 and that McIllwain considers the most important book on Law and Constitutionalism in England or any other European Nation2.

In this book Bracton established a clear separation between the gubernaculum and the jurisdictio, that is, between the sphere of power or control - in the hands of the Monarch - and the sphere of the administration of justice, of which the Monarch was a part but to which he was, at the same time, subjected3 Bracton recognises on the King of England an absolute freedom to approve and modify the juridical rules required to execute the Gubernaculu that received the name of leges, constitutiones y assisae, but in exchange he limited the jurisdiction of the King in what concerned the lex terrae that could only be approved (or simply confirmed) and repealed by the King when he could count with the consent of the barons of the kingdom assembled in the Curia Regis, an institution that in addition to exercising legisl...

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