3 - Legislative sovereignty and the rule of law

Summary

Introduction

Throughout the common law world, it is increasingly assumed that legislative sovereignty – legislative power that is legally unlimited – is incompatible with ‘the rule of law’. Those who regard the rule of law as an actual legal principle sometimes argue that it necessarily excludes or overrides any doctrine of legislative sovereignty. Others, who regard the rule of law as a political ideal or aspiration, sometimes argue that it requires any doctrine of legislative sovereignty to be repealed, and legislative power subordinated to constitutionally entrenched rights.

In this chapter I will challenge the assumption, common to both arguments, that legislative sovereignty is incompatible with the rule of law. Strong opinions have been expressed for and against. It has been claimed that ‘[i]f parliament … can change any law at any moment … then the rule of law is nothing more than a bad joke’. On the other hand, claims of that kind have been disparaged as ‘judicial supremacist rhetoric’, and judicial review of legislation as a ‘corrupting constitutional innovation – which [only] in vulgar jurisprudence is thought to support the doctrine of the rule of law’. The disagreement is not a new one. Over fifty years ago, F.A. Hayek's argument that bills of rights enhanced the rule of law was severely criticised for confusing ‘the Rule of Law’ with ‘the Rule of Hayek’. The critic, Herman Finer, strongly defended majoritarian democracy, claiming that in Britain ‘[t]he Rule of Law is not juridical, it is parliamentary.’