1 1952 (2) p.a. 428; [1952] 1 T.L.R. 1245; Keir and Lawson, Cases in Constitutional Law (4th ed.) 506.Google Scholar For comments on the case, see 68 L.Q.R. 285; 65 Harv.L.R. 1361; 30 Can.B.R. 692, 734; 31 Can.B.R. 52. Having lost this case, the South African government has sought to achieve its objectives by creating special courts for these matters, since the legislature has the power to establish courts without resorting to the “freeze” procedure; but the law which Parliament itself made in such a court was declared illegal: Home Secretary v. Harris and others, 1952 (4) S.A. 769. The government has now passed legislation to increase the number of appeal judges and the number of senators: Court of Appeal Quorum Act, 1955; Senate Act, 1955. A very valuable commentary on the main case can be found in Professor D.
V. Cowen`s two articles on “Legislative and Judiciary” in 15 M.L.R. 282 and 16 M.L.R. 273, to which, as we shall see, it is largely indebted. Their goal is not to continue to examine the vast literature on sovereignty, but to try to push the current controversies on this subject to the extreme. So, in a sense, it starts where Professor Cowen stops, because after his excellent presentation of the context and arguments on both sides, he concludes that the fundamental principles of the subject are “fluid, elusive and unclear.” The great South African case Harris v. Home Secretary has directed the thoughts of many lawyers towards the question of legal sovereignty. An orthodox English lawyer who consciously or unconsciously grew up with Coke and Blackstone`s doctrine of parliamentary sovereignty, and developed by Dicey, could explain it in simple terms. Even the thesis that English law has no means of “coding” sovereign legislation, which most English jurists would take for granted, has been questioned or denied by the main authorities.
The inability of the sovereign parliament to bind its successors stems from exactly the same cause – continued legal omnipotence – as the subordinate legislature. The relationship between the courts and Parliament is first and foremost a political reality. The relationship between a subordinate legislature and the courts interpreting its legislation is determined not only by political reality, but also by a higher judicial body to which these courts render a more submissive obedience. 40 Law and Constitution, 3rd ed., 138-40. Jennings is actually saying that legal sovereignty is a legal concept that expresses the relationship between Parliament and the courts. But his claim that it is “no sovereignty at all” because it is not the same as political sovereignty is difficult to follow. 43 Case Law, 10th ed. (by Dr. Glanville Williams), page 155.
Professor Cowen mentions this passage in 15 M.L.R. 294 in relation to the present state of the South Africa Act of 1909 in South Africa, but not in relation to the broader issues raised in his second article in 16 M.L.R. 273. On the similarity between Salmond`s “ultimate principle of law” and Kelsen`s fundamental standard, see Jones, J. W., Historical Introduction to the Theory of Law, 226.Google Scholar The great South African case Harris v. Home Secretary has directed the thoughts of many jurists towards the question of legal sovereignty. According to English law, the principle of the sovereignty of Parliament, “the dominant characteristic of our political institutions”, is supposed to be something very simple and clear – and this is what emerges from its classic presentation in the pages of Dicey. But the classic exhibition is widely contested today; An example can be drawn from the recent remark of the Lord President of the Court of Session 24: The quotation is the well-known passage from the judgment of Dixon J. (as it then was) in the High Court of Australia, 44 C.L.R.
at p. 426, in which he discussed the possible outcome of a similar case in England. He suggested that if a law were passed without a referendum to repeal a law that could only be repealed after a referendum, “the courts might be called upon to consider whether the supreme legislative power in this matter is in fact in the manner necessary for its authentic expression and through the elements in which it finds itself. was exercised. And he added that the answer to this question, whether obvious or unclear, would flow from the principle of parliamentary supremacy over the law. It is a carefully guarded statement. If, as Keir and Lawson seem to conclude, this suggests that the courts would conclude that sovereign power “resided” in a body other than Parliament in its present composition, this presupposes a revolution in the legal system, as will be explained below. 69 England`s Case vs. Home Rule, 244-5.
For a similar account of Dicey`s views, see The Law of the Constitution, 9th edition, 68-9, where there is the same dogmatism but lack of convincing reasons. How Dicey reconciled his claims that parliament could destroy or transfer its sovereignty with the thesis that it cannot bind future parliaments is nowhere explained. But Bacon agreed: “Parliament has the power to extinguish or transfer its own powers, but not, so long as the authority remains complete, to limit the functions and exercises of the same authority” (Works, ed. 1859, vol. VII, 370-1; quoted by Professor Cowen). The best answer to this question is Bacon`s own words, according to which “that which does not bind can satisfy for time” (ibid., vol. VI, 160); For no act of extinction or transfer would be evidence against annulment if the courts remained faithful in their obedience to the legislator. Bacon, Anson and Dicey assume that the act of extinction or transmission is accompanied by a political revolution that permanently changes the loyalty of the courts. The doctrine of parliamentary sovereignty in the United Kingdom may be alive, but it is not entirely good. Over the past 40 years, the idea that parliament can legislate on any issue has been shaken by various political and legal developments and attacked by many academic commentators. In retrospect, the 1950s seem to be a kind of golden age of doctrine. But the first line of Sir William Wade`s magnificent article, “The Basis of Legal Sovereignty,” published in 1955, stated that a recent judgment had “drawn the minds of many jurists to the question of legal sovereignty.” Dicey`s “classic exhibition,” he said, “is now widely contested.” .