the basis of legal sovereignty

Editorial Committee of the Cambridge Law Journal

The Basis of Legal SovereigntyAuthor(s): H. W. R. WadeSource: The Cambridge Law Journal, Vol. 13, No. 2 (Nov., 1955), pp. 172-197Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4504333 .

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C.L.J. The Basis of Legal Sovereignty 187

But to deny that Parliament can alter this particular rule of law

is not so daring as it may seem at first sight; for the sacrosanctity of the rule is an inexorable corollary of Parliament's continuing

sovereignty. If the one proposition is asserted, the other must be

conceded. Nevertheless some further justification is called for, since there must be something peculiar about a rule of common

law which can stand against a statute.

The peculiarity lies in this, that the rule enjoining judicial obedience to statutes is one of the fundamental rules upon which

the legal system depends. That there are such rules, and that

they are in a very special class, is explained with great clarity

by Salmond43: " All rules of law have historical sources. As a matter of fact and history they have their origin somewhere, though we may not know what it is. But not all of them have legal sources. Were this so, it would be necessary for the law to proceed ad infinitum in tracing the descent of its principles. It is requisite that the law should postulate one or more first causes, whose operation is ultimate and whose authority is underived. . . . The rule that a man may not ride a bicycle on the footpath may have its source in the by-laws of a

municipal council; the rule that these by-laws have the force of law has its source in an Act of Parliament. But whence comes the rule that Acts of Parliament have the force of law ? This is legally ultimate; its source is historical only, not legal. . . . It is the law because it is the law, and for no other reason that it is possible for the law itself to take notice of. No statute can confer this power upon Parliament, for this would be to assume and act on the very power that is to be

conferred.99 44

Once this truth is grasped, the dilemma is solved. For if no statute can establish the rule that the courts obey Acts of

Parliament, similarly no statute can alter or abolish that rule. The rule is above and beyond the reach of statute, as Salmond so well explains, because it is itself the source of the authority of statute.45 This puts it into a class by itself among rules of

43 Jurisprudence, 10th ed. (by Dr. Glanville Williams), 155. Professor Cowen in 15 M.L.R. 294 mentions this passage in connection with the present status in South Africa of the South Africa Act, 1909, but not in connection with the wider questions raised in his second article in 16 M.L.R. 273. For the similarity between Salmond's "ultimate legal principle" and Kelsen's Grundnorm, see J. W. Jones, Historical Introduetion to the Theory of Law, 226.

44 Italics supplied. 45 The same point is made by Professor E. C. S. Wade, following Mr. R. T. E. Latham, in the 9th ed. of Dicey, p. xxxviii: " Where the purported sovereign

the basis of legal sovereignty

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