Parliamentary Sovereignty and the Constitution

Abstract

Eleftheriadis Pavlos - Professor of Law at Mansfield College, University of Oxford
Adress: Oxford OX1 3TF, United Kindom

The theory and practice of parliamentary sovereignty is one of the key problems of the constitutional theory and practice. The article features a critical interpretation on the basis of the comparative law methods such as uniqueness and self-sufficiency of the doctrine and practice of the British parliamentary sovereignty (superiority). The author emphasizes that these postulates supported by many legal academics including Dicey and Wade did not allow comparing Parliament with the United States Congress or the German Bundestag, whose powers are limited by their respective constitutions. Parliament in the UK appears to determine the law unconditionally and without limit. Nevertheless, a fuller understanding of parliamentary sovereignty as a legal and constitutional doctrine shows that this first impression is false. According to the author, the nature of the British unwritten constitution is entirely similar to the written one prevailing in the US or Germany. This is because the doctrine of parliamentary sovereignty does not consist in a single dominant idea but in a number of related and mutually supporting principles that constitute higher law. The way in which these principles interact is parallel to the interaction of the main clauses of the US Constitution or the German Basic Law. This analysis shows that the constitution, written or unwritten, never requires a pouvoir constituent. The principles of constitutional order are numerous, they support each other and become efficient in the process of interpretations and debates. They cannot be incorporated into an integral written document. Hence, abstract constitutional patterns are developed on the particular to general principle and not vice versa. Legal interpretations breathe life into our public institutions, which may be accompanied with dynamism and inevitable modifications. The author arrives at a conclusion that the source of constitution is represented with law originating in the combination of moral and political principles breathing life into our public institutions.