The Shibboleth of Sovereignty
| Author | Stephen Tierney,Martin Loughlin |
| DOI | http://doi.org/10.1111/1468-2230.12376 |
| Date | 01 November 2018 |
| Published date | 01 November 2018 |
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The Shibboleth of Sovereignty
Martin Loughlin∗and Stephen Tierney†
Sovereigntyis the central tenet of moder n British constitutional thought but its meaning remains
misunderstood. Lawyers treat it as a precise legal concept – the doctrine of parliamentary
sovereignty – but commonly fail to acknowledge that that doctrine is erected on a skewed
sense of what sovereignty entails. In particular, they do not see that the doctrine rests on a
particular political conviction, that the British state depends on a central authority equipped
with an unlimited power.These two facets of sovereignty are now so deeply intertwined in legal
consciousness that they cannot easily be unravelledand this becomes the main bar rier to thinking
constructively about Britain’s constitutional arrangements. This article substantiates these claims
by explaining how the doctrine came into being, demonstrating how it is tied to a deeper
political conviction, showing that its political underpinnings have been considerably weakened
over the last century, and indicating how its re-working is the precondition of constitutional
renewal.
INTRODUCTION
The legal doctrine of parliamentary sovereignty is such a fundamental tenet of
constitutional belief that we commonly assume it to be of ancient provenance.
In reality, it is a late-nineteenth century creation. Its author, the Victorian
jurist Albert Venn Dicey, presented it as the central element of a work that
sought to shift the basis of British constitutional thought. Noting that hitherto
the constitution had been treated as a historical phenomenon, he argued that
constitutional scholars, having been seduced by speculative ideas, had been
drawn into a ‘maze in which the wanderer is perplexed by unreality . . . by
antiquarianism, and by conventionalism’.1Criticising those who regarded the
constitution as an object of veneration, he maintained that the scholar’s duty
must not be to eulogise but merely to analyse and expound.2
Dicey argued that a scientific explanation could be advanced only by es-
tablishing a new and autonomous field, that of ‘the law of the constitution’.
Noting that Blackstone in his influential Commentaries on the Laws of England of
1765 nowhere uses the term ‘constitutional law’,3Dicey claimed to have dis-
covered a new branch of legal knowledge. Deploying a legal positivist method,
he defined this new subject as one concerned to analyse ‘all rules which directly
∗Professor of Public Law, London School of Economics & Political Science.
†Professor of Constitutional Theory, University of Edinburgh.
1 A. V. Dicey, Lectures Introductory to the Study of the Law of the Constitution (London: Macmillan
1885) 7. For subsequent references, we use The Oxford Edition of Dicey J. W. F. Allison (ed)
(Oxford: OUP, 2013) vol 1, 12.
2 Dicey, ibid, 10.
3ibid, 11: A student ‘will discover that the very term “constitutional law”, which is not (unless
my memory deceives me) ever employed by Blackstone, is of comparatively modern origin’.
C2018 The Authors. The Modern Law Review C2018 The Moder n LawReview Limited. (2018) 81(6) MLR 989–1016
Published by JohnWiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 101 Station Landing, Medford, MA 02155, USA
The Shibboleth of Sovereignty
or indirectly affect the distribution or the exercise of the sovereign power in
the state’.4
Having re-orientated the object of study towards the rule order of the
British state, Dicey confidently asserted that the basic rule of the constitution
is expressed in ‘the doctrine of parliamentary sovereignty’. This is the rule that
the Crown-in-Parliament
has, under the English constitution, the right to make or unmake any law whatso-
ever; and, further, that no person or body is recognised . . . as having the right to
override or set aside the legislation of Parliament.5
This foundational doctrine was presented as an objective and technical rule
about the relative authority of sources of law.6
Dicey’s great achievement is to have been the first to apply a rigorous juris-
tic method to the study of the British constitution. This provided subsequent
generations of lawyers with a clear and relatively simple framework of analysis.
But that is not all: his discovery of the ‘law of the constitution’ also caused
subsequent generations of lawyers, despite continuing to pay lip service to
the evolutionary character of the British constitution,7to regard t he under-
lying basic law as of timeless authority.8Notwithstanding developments since
the late nineteenth century which have transformed the character of modern
government, lawyers continued to uphold his account of the basic rule.
Continuing adherence to Dicey’s account, we argue, is now creating a ‘hope-
less confusion both of language and of thought’ which flows from a failure to
distinguish between the particularity of Dicey’s legal doctrine and the general
concept of sovereignty. And the failure to recognise that his legal doctrine
is inextricably tied to a particular political belief about authority is causing
constitutional lawyers to become ‘perplexed by unreality’.9
We aim to substantiate these claims by differentiating Dicey’s legal doctrine
from the general concept of sovereignty (in the third and fourth sections below)
and then examining the contemporary consequences of this conflation (in the
fifth part). But the political basis of the legal doctrine must first be explained (in
the next section). Our key point is that no sooner had Dicey finished criticising
those who eulogise rather than analyse than he revealed that his fundamental
legal doctrine rested its authority on a particular political belief , one which
he treated as an article of faith. He hinted at this when noting that ‘the
omnipotence or undisputed supremacy throughout the whole country of the
central government’ is a feature that has ‘at all times since the Norman Conquest
4ibid, 20.
5ibid, 27.
6ibid, 27-49, Lecture II: ‘The Sovereignty of Parliament’.
7 As did Dicey himself, see ibid, 10: ‘The present generation must of necessity look upon the
constitution in a spirit different from the sentiment of either 1791 or of 1818’. The dates refer
to the publication of works he cited by Burke and Hallam.
8 See, for example, N. Johnson, ‘Dicey and his Influence on Public Law’ [1985] Public Law 717,
719: ‘Dicey’s elegant simplification . . . carr ied the risk of tempting future generations to treat
its terms as holy writ’, cited by Allison in Dicey, n 1 above, xiv.
9 The quoted phrases are those that Dicey applied to Blackstone’s account: Dicey, ibid, 12.
990 C2018 The Authors. The Modern Law Review C2018 The Moder n LawReview Limited.
(2018) 81(6) MLR 989–1016
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