Oxford Journal of Legal Studies, Vol. 20, No. 1 (2000), pp.

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Sovereignty Re-examined: The Courts, Parliament, and Statutes

N. W. BARBER

AbstractIn this article the relationship between Parliament and courts is examined. The views of writers on sovereignty are considered and criticized. Two criticisms of the sovereignty theorists are made: rst, that they wrongly assume that a legal system must attribute supreme legal power to a single source and, second, that they wrongly assume that statutes in the English system constitute absolute exclusionary reasons for decision. It is contended that legal systems can, and the English Constitution does, contain multiple unranked sources of law. Harts rule of recognition and Kelsens Grundnorm are considered and compared, and found to be insuciently exible to meet the realities of the English Constitution. A more complicated model of judicial reactions to statutes is proposed, and decisions of the judges that run contrary to the law as set down in the statute are considered. It is contended that the relationship of the courts to Parliament ought not to be considered a purely legal issue; it also has a political dimension.

1. Introduction
This is an essay about the relationship between the courts and Parliament. Its focus is on the English1 legal system, but many of its conclusions will also be true of other legal systems. The essay examines the manner in which the courts react to Parliaments statutes. It will suggest that the traditional concept of sovereignty, in all its manifestations, is unhelpful and misleading. A new understanding of the force of statutes, grounded in the works of Joseph Raz, will be put forward. The rst half of the essay will examine the doctrine of sovereignty, and develop two fundamental criticisms of that doctrine. The second half will build on those criticisms to produce a more accurate model of the relationship between the courts and Parliament.

2. Sovereignty
Sovereignty theorists can be divided into two camps. There are those who advance theories of institutional sovereignty, and those who support theories of rule-based sovereignty.
Brasenose College, Oxford. Thanks are due to John Daley, John Eekelaar, Adam Green, Neil MacCormick, and Soren Schonberg, all of whom have helped improve this essay beyond all measure. Needless to say, none wholeheartedly agrees with its contentions. I have beneted from John Daleys unpublished DPhil thesis, The Bases for the Authority of the Australian Constitution. 1 I speak throughout of the English legal system; Scotland poses interesting and distinct problems for sovereignty. 2000 Oxford University Press

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The principal advocate of institutional sovereignty is John Austin.2 Austin articulated a theory of sovereignty in which a single institution, or group of institutions, possessed supreme law-making power. The sovereigns power was absolute, and unique.3 It was absolute, because the sovereign could will that anything be law.4 The power was unique, because no other institution had an independent right to legislate.5 Any other body within a constitution that created or developed law could only do so because of the tacit authorization of the sovereign body. Austins understanding of sovereignty was grounded in a power relationship rather than in a rule. The courts did what the sovereign told them not because a rule obliged it, but simply because the sovereign was the most powerful actor in the legal system. Applying the theory to the English Constitution, Austin argued that Parliament possessed the sole right to create and develop the law.6 Parliament was the fount of legal validity.7 All laws within the English system were valid either because Parliament had expressly willed them to be so, or because Parliament had impliedly endorsed them by allowing laws created by other institutions to remain.8 Austin was, in part, providing an answer to the question of the identity of a legal system; a mechanism by which one legal order could be distinguished from another.9 This interesting question underlies much of what has been written on sovereignty, and will be examined more closely later. Austin believed that he was producing a general theory of legal systems. He thought it logically necessary that a group of people or institutions possessed absolute, and unique, legal authority within a system. Tested as a theory of a legal system, Austin is found to be wanting.10 Austin could not satisfactorily explain how courts and citizens identify the sovereign; why a rule enacted by the King, Lords, and Commons was a statute, but a pronouncement of the Commons alone was not. He could show that this was the case as a matter of fact, because citizens lacked a habit of obedience towards the Commons alone, but he could not conceptualize this habit in terms of a rule. Consequently, he could not explain how sovereignty was passed from one group of individuals to another group; he could not explain the continuity of legal systems.11 The answer,
2 J. Austin, The Province of Jurisprudence Determined (1954) Lecture vi; see J. Raz, The Concept of a Legal System (2nd edn, 1980) chs 1 and 2. 3 The success of Austins project depended partly on denitional at; he divided the actors in the legal system into those he classed as sovereign and those classed as subordinate. Dicult examples were resolved by expanding the group marked sovereign, or by stipulating that an institution was subordinate to another. See Austin, above n 2 at 233, 246. There is a risk that Austins theory will collapse into the truism that all legal systems must claim legal supremacy, on which see J. Raz, The Institutional Nature of Law in The Authority of Law (1979) at 11819. 4 The notion of a sovereign bound by rules was a conceptual impossibility: Austin, above n 2 at 2545. The only constraints on the sovereign were extralegal: Austin, ibid at 21516. 5 Ibid at 1934, 254. 6 Ibid at 224, 230. Sovereignty was shared between the King, the Lords, and the electorate of the House of Commons. It is important to remember that, in Austins eyes, the electorate of the Commons was not, and should not be, equated with the adult population. 7 Ibid at 2356. 8 Ibid at 312. 9 H. L. A. Hart, The Concept of Law (2nd edn, 1994) 25; J. Raz, The Identity of Legal Systems, above n 3. 10 Hart, above n 9, especially ch 4. 11 Ibid at 534; but see the partial defence in M. Bayles, Harts Legal Philosophy (1992) 3542.

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as Hart elegantly demonstrates, is found in the rules that ocials use to identify law-making bodies. These rules are distinct from the institutions they identify, and need not alter when the composition of those bodies changes.12 Austins work seems archaic in the light of Harts criticisms, but there are valuable lessons to be learned from his writings. Austins understanding of our legal system focused on the political balance between the courts and Parliament. The legal rested upon the political. Hart demonstrated the inadequacies of such an approach; but perhaps there is still something to be gained from thinking of legal institutions in political terms. Later in the essay I will try to reintroduce a political dimension into our understanding of the English Constitution. The two leading modern supporters of rule-based sovereignty are Wade13 and Heuston.14 Both saw sovereignty as a rule by which the courts could determine the authoritative pronouncements of Parliament. Of the two, it is Heuston who was closest to Austin. For Heuston, sovereignty was a single, simple rule: it stated that all that Parliament willed was law. This rule could be claried, or dened, by Parliament: it could determine how its will was to be ascertained, and what was to constitute Parliament.15 Heuston argued that Parliament could legally bind its future self by determining the manner and form by which its statutes were identied under this rule. Despite granting Parliament absolute supremacy, Heuston diered from Austin in recognizing that the criterion for the identication of sovereign acts was distinct from the identity of the sovereign body; sovereignty was grounded in a rule. Wades approach to the question is more sophisticated. He argues that the rule by which statutes are identied is beyond the reach of Parliament. The rule is a political fact16 that can be deduced from the practice of the judges. Whilst recognizing that the manner and form model advanced by precursors of Heuston was a possible model of a legal system,17 Wade argues that in the English system the power of Parliament is constrained by the common law. The common law contains a rule that identies those enactments of Parliament that should be treated as statutes. This rule is above Parliament, logically prior to it, and could not be altered from within the existing legal system.18 Wades fundamental rule is more complex than that of Heuston. It contains criteria by which Parliament as an institution may be identied, and sets tests which that institutions proclamations must pass before the courts will recognize them as law.
Ibid at 5961. W. Wade, The Basis of Legal Sovereignty [1955] CLJ 172. 14 R. Heuston, Essays in Constitutional Law (2nd edn, 1964) ch 1. 15 Contrast the slightly dierent reading in P. Craig, Sovereignty of the United Kingdom after Factortame (1991) 11 Yearbook of European Law 221 at 225, where Heuston is taken to advocate multiple rules, identifying the composition of Parliament and the procedure which must be undertaken before a statute is passed. Craigs reading is closer to Heustons words (see Heuston, n 14 at 69, 24), but it is submitted that Heuston pre-supposes a higher ruleall that Parliament enacts is lawwhich can then be dened by the other rules discussed by Heuston. 16 Above n 13 at 188. 17 Ibid at 1756. 18 Ibid at 189.
13 12

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The theories of both Wade and Heuston are unconvincing. Heustons theory eectively entailed that a Parliament could bind its successors in any way, and to whatever extent, it wished.19 In contrast, Wades theory held that no Parliament could ever bind its successors.20 Neither of these extremes seems plausible. Despite this radical dierence, the two positions have surprising similarities. Wade and Heuston agree that there is a rule in the English legal system that identies the highest source of law; they agree that the highest legal source is Parliament. Both believe that the most recent statute passed by Parliament constitutes an absolute exclusionary reason for the courts decision, preventing the judges from considering other reasons that might bear on the question before them. The remainder of this part of the essay will be spent arguing for two propositions. First, that in some legal systems there are multiple unranked sources of legal power: Wade and Heuston are wrong to assume that a legal system must give priority to one legal source. Secondly, that the most recent enactment of Parliament need not constitute an absolute exclusionary reason for judicial determination of the law on a topic; the scope of the statutes exclusionary force may be limited.

A. The rst objection: the possibility of multiple unranked sources of legal power
The analyses of Wade and Heuston both implicitly assume that the English system must contain a rule identifying a supreme legal source. This assumption is shared by two of the most signicant voices in modern jurisprudence: Kelsen and Hart.21 Kelsen believed that all legal systems possess a single supreme rule; the Grundnorm.22 The Grundnorm played at least two roles in Kelsens legal philosophy.23 First, it enabled actors within the legal system to identify proposed norms as objectively valid legal norms.24 The Grundnorm identied a founding constitution that, in its turn, provided a set of rules which could be used to test the legal identity of lower level legal norms. The legal system took the form of a pyramid: at its top was the Grundnorm, at its base were the lowest level of practical norms, directing and forbidding action. Each separate legal system had its own, distinct, Grundnorm.25 The Grundnorm linked together disparate lowlevel legal norms into a single system. We know that these diverse norms formed

19 20 21

Above n 14 at 6, 2930; above n 13 at 181; Hart, above n 9 at 14952. Above n 13 at 1867; sharing this view with Austin: Austin, above n 2 at 254. More recently, Harris has also defended this view. See J. Harris, Law and Legal Science (1973) especially ch

3.

H. Kelsen, General Theory of Law and State (transl. A. Wedberg, 1948) 11023, 3956. J. Harris, When and Why Does the Grundnorm Change? (1971) 29 CLJ 103 at 1068; see also C. Richmond, Preserving the Identity Crisis (1997) 16 Law and Philosophy 376 at 3924. 24 H. Kelsen, Pure Theory of Law (transl. M. Knight, 1967) 198201. 25 H. Kelsen, Professor Stone and the Pure Theory of Law (1965) 17 Stanford LR 1128 at 11489.
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part of a single legal system because they had a common element: the Grundnorm.26 Second, the Grundnorm was a presupposition of validity that enabled legal reasoning.27 If some one asserted a legal norm and was challenged as to its validity, she could defend her contention by pointing to a higher level norm that empowered the creation of the lower norm. This could continue all the way up the legal chain to the Grundnorm. The Grundnorm, as the highest legal rule, could not be validated by reference to a further legal rule; its legal validity must be presupposed in order for legal reasoning to be undertaken. Consequently, anyone who engaged in legal reasoning impliedly accepted the existence, and legal validity, of the Grundnorm. In acting as a rule against which the identity of other purported legal norms can be tested, the Grundnorm simultaneously validated these norms by allowing their inclusion within the legal system. The relationship between Kelsens Grundnorm and Harts rule of recognition is far from straightforward. Hart used the phrase, rule of recognition to cover two very dierent concepts.28 First, a rule of recognition was taken as any rule that identied other rules.29 On this interpretation, all modern legal systems possess multiple rules of recognition. Rules empowering delegated legislation and attributing authoritative status to certain institutions would count as rules of recognition. Second, Hart used rule of recognition to signify an ultimate, supreme rule at the top of the legal system.30 This rule diers fundamentally from all other rules in the Hartian system. It can only be discerned from the conduct of ocials (normally the judges), and it cannot be found within legal sources.31 The rst use of rule of recognition is unproblematic. We can identify such rules in the pronouncements of judges and in the texts of statutes. The second sense is highly confusing. It is this version of the rule of recognition that will be discussed in the rest of this section. Like Kelsens Grundnorm, the rule of recognition served as a rule, or standard,32 against which purported legal norms could be tested. A rule only counted as a legal rule if it met the requirements of the rule of recognition. So, to simplify for the purpose of example, an enactment of Parliament is only a law if it has been passed by both Houses of Parliament and given the Royal assent. Harts rule of recognition unied the legal system.33 As with the Grundnorm, the rule of recognition provided a common test by which diverse legal rules are shown to form part of a single legal system. It is therefore necessary that each distinct

26 Above n 22 at 110, 367; H. Kelsen, Introduction to the Problems of Legal Theory (transl. S. Paulson, 1992) 64; H. L. A. Hart, Kelsens Doctrine of Unity of Law in H. Hart (ed.), Essays in Jurisprudence and Philosophy (1983) 33842. Harris exclusion principle performs a similar function: above n 21 at 10, 4143, 71. 27 Above n 22 at 11617; above n 21 at 789; S. Paulson, Introduction, at xxxxlii, in Kelsen, above n 26. 28 M. Bayles, Harts Legal Philosophy (1992) 79. 29 Hart, above n 9, especially 946. 30 Hart, above n 9, especially 1057; also: H. L. A. Hart, Legal Duty and Obligation in H. L. A. Hart (ed.), Essays on Bentham (1982) 155, n 77. 31 Though it may be reected in them: Hart, above n 9 at 10811. 32 Above n 28 at 667. 33 Hart, above n 9 at 11315.

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legal system possess a distinct, single, rule of recognition.34 If it were shown that more than one rule of recognition existed within a dened geographic area, that area would be subject to multiple legal systems. When we try to identify the content of the rule of recognition in the English legal system, or indeed in any real legal system, problems arise. If the rule of recognition is to do all that Hart hopes, it must be a complicated set of criteria, containing many dierent tests for valid legal norms. In the English system, the list of criteria would include rules passed by both Houses of Parliament and given Royal assent, the various forms of delegated legislative powers, decisions of the courts, and so forth.35 If it is accepted that the rule of recognition consists of a large number of criteria, the integrity of the rule comes under threat.36 It begins to look like a matter of choice whether the rule of recognition should be treated as a single rule with many dierent criteria, or allowed to collapse into a number of separate norms. Whichever of these paths is chosen, to protect the Hartian project it must be shown that these criteria, or rules, are related to each other.37 This relationship could be very simple. It would be sucient to show that one rule, or criterion, had priority over the others. If there is no relationship between these elements the rule of recognition will no longer provide an account of the identity of the legal system. There would be no supreme criterion, or rule, at the top of the system. The rule of recognition would collapse into a number of disparate rules, and, on Harts account, we would be unable to distinguish between multiple legal systems within a single geographical area, and a single legal system with multiple, unranked, rules of recognition. A response to this concern might run as follows. The distinction between multiple, but overlapping, legal systems and a single legal system with multiple unranked rules of recognition could be made by examining the practices of ocials within the system. This reply succeeds in states where dierent sets of ocials are applying dierent sets of laws: for example, in a state where religious ocials applied religious laws, and secular ocials applied secular laws. Here there are multiple systems within a single area. The response is unsuccessful where the same ocials apply the two dierent rules of recognition, or where there are two distinct groups of ocials, but both groups regarded themselves as part of the same legal system. This analysis demonstrates why the theories of sovereignty of Wade and Heuston t so well alongside Harts rule of recognition. Their theories of sovereignty provide a single supreme criterion of what constitutes law. All the other criteria are inferior to this criterion, and consequently are in a relationship
34 N. MacCormick, H. L. A. Hart (1981) 1089; N. MacCormick, The Concept of Law and The Concept of Law (1994) 14 OJLS 1 at 1315. 35 Above n 28 at 7981; N. MacCormick, H. L. A. Hart (1981) 11011; see also K. Greenwalt, Harts Rule of Recognition and the United States (1988) 1 Ratio Juris 40; R. Sartorius, Harts Concept of Law in R. Summers (ed.), More Essays in Legal Philosophy (1971). 36 J. Eekelaar, Principles of Revolutionary Legality in A. Simpson (ed.), Oxford Essays on Jurisprudence (Second Series) (1973) 357. 37 N. MacCormick, After Sovereignty: Understanding Constitutional Change (1998) Kings College LR 20 at 24.

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with it. An examination of the English legal system demonstrates that this contention is false, and that neither Kelsens Grundnorm nor Harts rule of recognition can be accepted as universal truths of legal systems. It can easily be demonstrated that the English legal system possesses multiple unranked sources of legal power. The area of parliamentary privilege has long been a source of perplexity for constitutional lawyers. The House of Commons possesses various privileges, of which its right of freedom of speech is probably the most important. Nothing that is said in the House may be called into question in the courts; Members of Parliament are not subject to civil suit for their speeches in the chamber. This does not mean that they are immune from the law. The law binds Members, even within the chamber. But even though such law exists, it is not for the courts to apply it when it falls within the realm of privilege.38 This much is uncontroversial, and may be easily reconciled with the traditional theories of sovereignty: the courts permit the Commons exclusive powers of interpretation within a limited area. The issue becomes interesting when we turn our attention to the scope of parliamentary privilege. The Commons and the courts have never reached agreement on who should be the ultimate arbiter of the scope of privilege. The courts regard themselves as the nal judge of privilege. In their view, it is only once a matter is shown to be subject to privilege that it falls within the exclusive jurisdiction of the Commons.39 The House of Commons, however, has maintained that it is for it to determine whether or not a matter is touched by privilege.40 This state of aairs led Keir and Lawson to declare that there may be at any given moment two doctrines of privilege, one held by the courts, the other one by either House, the one to be found in the Law Reports, the other in Hansard, and no way of resolving the real point in issue should conict arise.41 In his early work on legal systems Kelsen argued that valid norms could not contradict.42 This view is still adhered to by Harris, one of the leading modern followers of Kelsen.43 The above example shows that is perfectly possible for a mature legal system to contain contradictory norms. One rule, endorsed by the
Stockdale v Hansard (1839) 9 Ad And E 1, esp. 114, 112 ER 1112. 39 Ibid, esp. 165; Bradlaugh v Gosset (1884) 12 QBD 271, esp. 27880; Hamilton v Al Fayed [1999] 3 All ER 317 at 334; S. de Smith, Parliamentary Privilege and the Bill of Rights (1958) 21 MLR 465; A. Denning, Memorandum on The Strauss Case (1985) PL 80. 40 E. May, Parliamentary Practice (22nd edn, 1997) ch 10; CJ (170204) 308; CJ (1837) 418420; M. L. Gwyer, Ansons Law and Custom of the Constitution (5th edn, 1922) 1923; C. R. Munro, Studies in Constitutional Law (1987) 14850. 41 H. Keir and F. H. Lawson, Cases in Constitutional Law (6th edn, 1979) 255. The wording is the same in the 5th edition (1967) 267, the last to include Keir as a joint author. The view is also supported by de Smith, above n 39 at 471; E. May, Parliamentary Practice (20th edn, 1983) at 203, cited in C. Munro, Essays in Constitutional Law (1987). 42 Above n 22 at 4078. In his later work he abandoned this view: H. Kelsen, General Theory of Norms (transl. M. Hartney, 1991) 21325, but he maintained his adherence to the uniqueness of the Grundnorm (at 255). 43 J. Harris, Kelsen and Normative Consistency in R. Tur and W. Twining (eds), Essays on Kelsen (1986). See also S. Paulson, On the Status of the Lex Posterior Derogating Rule in the same volume. Raz provides a more profound objection to this line of thought than is argued for here: see Raz, above n 2 at 225. See also T. Honore , How is Law Possible? Making Law Bind (1987) 23: though Honore accepts that there are multiple rules of recognition, he remains faithful to Harts project in insisting that these multiple rules never produce insoluble conicts between the laws they purport to validate.
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judges, holds that the courts possess exclusive jurisdiction to determine the validity of a claim of privilege. Another rule, endorsed by the Commons, holds that the Commons possesses exclusive jurisdiction to determine the validity of a claim of privilege. These two sets of ocials are united in their belief that they are part of a single legal system, and that they are each under a legal obligation to apply the same set of rules.44 The two institutions cannot both possess exclusive jurisdiction; the two norms are contradictory. In a recent article Harris moves from the sound claim that legal systems generally do not contain contradictory norms to the unsound claim that there is something inherent in the concept of a legal system that prevents valid norms from ever contradicting each other. He argues that a system in which such norms existed would not be a legal system as we understand it.45 This seems plausible if we try to imagine contradictory norms in the realm of tort or criminal law, but there can be good political reasons to allow the existence of contradictory norms in other areas of law. In the example given above, neither the House of Commons nor the courts are willing to cede supremacy. The institutional conict is resolved by allowing a stand-o; both rules can exist, provided that each institution is cautious about asserting its strict legal rights.46 Where does this leave the Grundnorm? Kelsens claim that the Grundnorm identies a particular constitution or custom seems indefensible. There is no common constitution or custom that empowers the Commons and the courts; they claim their validity from separate sources. Recent scholars, in particular MacCormick,47 have attempted to reconceptualize the Grundnorm as an injunction to obey the law! Consquently, the second of the Grundnorms functions is retained, it is still the fundamental presupposition of legal reasoning, but the rst of the Grundnorms functions is lost. The Grundnorm is the same in all legal systems; it no longer identies a particular constitution. In part MacCormicks motivation for endorsing the Grundnorm is, perhaps, the increasingly obvious inadequacies of the Hartian rule of recognition.48 The Grundnorm lls the role of a single supreme rule, whilst the rule of recognition collapses into a plethora of unrelated rules identifying various unranked legal sources. However, this revised Grundnorm is a very weak unier: it is merely another way of expressing

44 In this way the example diers from a state which contained secular laws applied by secular courts and religious laws applied by religious courts. In such a situation two legal systems would exist in a single geographic area. The judges and the House of Commons, in contrast, regard themselves as part of the same legal system applying, with the exception of the disputed empowering rule, the same set of laws. 45 Harris, n 43 at 2234. 46 Compare the ambiguity surrounding the competence of the European Court of Justice and the national courts of Member States: C. Richmond, Preserving the Identity Crisis (1997) 16 Law and Philosophy 367 at 41520; I. Ward, The European Constitution and the Nation State (1996) 16 OJLS 161 at 1645. 47 Above n 37 at 356. 48 N. MacCormick, Beyond the Sovereign State (1993) 56 MLR 1, esp. at 810; also J. Harris, When and Why Does the Grundnorm Change? (1971) 29 CLJ 103 at 109. In some of MacCormicks earlier work the rule of recognition seems to be elevated to ll the role of the Grundnorm: see N. MacCormick, Jurisprudence and the Constitution (1983) CLP 13 at 26; N. MacCormick, The Concept of Law and The Concept of Law (1994) 14 OJLS 1 at 15.

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the truism that it is in the nature of law that it demands obedience. It cannot serve to distinguish one legal system from another.49 The example of parliamentary privilege shows that legal systems can, and do, contain multiple unranked sources of legal power. In Hartian terms, we could conceptualize this either as two, unranked rules of recognition, or as a single rule of recognition containing two unranked criteria. Hart and the sovereignty theorists could thus still argue that the English system possesses an ultimate rule of recognition: the claims of the Commons and the courts could be overridden by Parliament.50 A further example can be given which casts doubt on this claim. Parliament and the European Communities are also, in part, unranked sources within the English legal system. The precise legal relationship of these bodies as a matter of English law has yet to be conclusively determined.51 The case of Factortame52 has thrown the law into confusion. The courts must now suspend an Act of Parliament when it conicts with Treaty articles, but it is not possible to state for certain how far this duty extends. It is arguable that in the case of a deliberate, but not express, breach the Act would not be suspended. It is also arguable, more strongly, that if an Act expressly stated it was contrary to European law the English courts would hold it valid. The present law does not resolve these questions.53 In some areas, European law and Parliament have become unranked sources of law. Provided that practical conict between the two rules is avoided, the English legal system can avoid ranking these sources of law.54 In the example of parliamentary privilege, Parliament could, by legislation, resolve the conict between the courts and the House of Commons. In the present example such a resolution is not, as a matter of law, possible. The conict is between two rules of recognition, both of which claim supremacy. There is no higher legal power which can resolve the contest. This discussion has importance both at the level of abstract jurisprudence, and for English constitutional theory. At the abstract level, it shows that it is a mistake to assume that it is either a logical or empirical necessity for a legal system to give supreme legal force to one institution, or to have a legal rule that will, or can, decisively resolve conict between dierent legal sources. The answers given by Hart55 and Kelsen56 to the question of the identity of a legal system have failed. Without this support, the work of the sovereignty theorists
49 J. Eekelaar, Principles of Revolutionary Legality in A. Simpson (ed.), Oxford Essays on Jurisprudence (Second Series) (1973) 256. 50 But note that this would require Hart to abandon his view that ambiguities in the rule of recognition can always be resolved by the courts: Hart, above n 9 at 148. 51 P. Craig, Report on the United Kingdom in A. Slaughter, A. Sweet, and J. Weiler (eds), The European Courts and National Courts: Doctrine and Jurisprudence (1997) 2069. 52 R v Secretary of State for Transport, ex parte Factortame (No.2) [1991] AC 603. For an insightful analysis of Factortame, see P. Craig, Sovereignty of the United Kingdom after Factortame (1991) 11 Yearbook of European Law 221. 53 N. MacCormick, Beyond the Sovereign State (1993) 56 MLR 1 at 810. 54 This stand-o is even more apparent in the German jurisprudence. See J. Kokott, Report on Germany in A. Slaughter, A. Sweet, and J. Weiler (eds), The European Courts and National Courts: Doctrine and Jurisprudence (1997) and Brunner [1994] 1 CMLR 57. 55 Hart, above n 9 at 103. 56 H. Kelsen, Introduction to the Problems of Legal Theory (transl. S. Paulson, 1994) 64.

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is weakened. There is no reason to suppose, as both Wade and Heuston have done, that there is a decisive ranking of legal sources within the English legal system. Contrawise, there is good reason to suppose that the English legal system does contain several areas in which legal sources are unranked, and where the courts lack the legal materials to resolve conicts between dierent sources of law. A movement towards this way of looking at legal systems can be seen in MacCormicks recent work. He points towards a more exciting understanding of legal systems; a world in which legal systems over-lap in a non-hierarchical fashion,57 and in which law can exist separately from the state.58

B. The second objection: the statutes of Parliament need not constitute absolute exclusionary reasons
Statutory provisions are often a combination of a rst- and a second-order reason.59 The rst-order reason is a reason for action. The second-order reason is an exclusionary reason that shuts out consideration of some other rst-order reasons.60 For instance, the law requiring seat-belts to be worn in cars provides a rst-order reason to wear the belt, combined with a second-order reason not to consider the other reasons that might bear on the decision. It is necessary to distinguish further those reasons for action which are conclusive, from those reasons for action which are absolute.61 The sovereignty theorists did not argue that statutes were always conclusive reasons for action. A reason for action is conclusive if it requires action without any supplementary reasons. A statute would provide a conclusive reason for action if it excluded all other reasons bearing on the decision, and provided a reason to act in a certain way. Though this will sometimes be the case, often the statute will require interpretation by the court. The better view is that the sovereignty theorists thought that the most recent statute, of necessity, provided absolute reasons for action. A reason for action is absolute if it excludes all reasons that conict with it. This means that the statute would exclude all those reasons for action that are contrary to the rst-order reasons for action contained in the statutes text. There is no logical necessity for statutes to constitute absolute reasons for action. Indeed, it is an uncontroversial rule of statutory construction that an older statute on a topic must give way to a newer statute.62 On the classical model of statutory construction, endorsed by the sovereignty theorists, the most recent statute has absolute force, shutting out all reasons

Above n 53. N. MacCormick, Institutional Normative Order: A Conception of Law (1997) 82 Cornell LR 1051; also W. Eward, Comment on MacCormick (1997) 82 Cornell LR 1071. 59 As we will see, sometimes a rule of law can consist entirely of exclusionary reasons; a reason not to act for reasons. 60 J. Raz, Practical Reason and Norms (2nd edn, 1990) especially 3548, 736, 1416, 1826. 61 This distinction is my own, and drawn for the convenience of this article. 62 I am grateful to Adam Green for pointing this out to me.
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bearing on the reason contained within it, but old statutes have limited exclusionary force. They cannot exclude the reasons contained in subsequent statutes. It is quite possible to imagine a system in which even the most recent statutes only had limited exclusionary force. Imagine a world in which the legislature was prone to passing statutes ordering the execution of blue-eyed babies, realizing the folly of this only after terrible slaughter. The legislature passes a statute to prevent itself making such a mistake again. The statute reads:
Statutes that permit or require the execution of blue-eyed babies must be declared invalid by the courts.

A year later, the legislature has a rush of blood to the head and passes another statute ordering the death of blue-eyed babies. The judges, with great relief, invoke the earlier statute and declare that the later statute must be ignored. The rst statute has been given three areas of legal eect. All of these are exclusionary reasons in Razian terms: 1. The protective statute requires the judge to ignore the purported reason to kill the babies contained in the killing statute. 2. The protective statute requires that the judge ignore the full claims of the exclusionary reason contained within the killing statute. The killing statute must not been taken to exclude the reason contrary to it contained within the protective statute. 3. The protective statute contains a wider exclusionary reason not to act on any reasons contrary to the other exclusionary reasons (expressed at 1 and 2 above) contained within the protective statute: for instance, the thought that killing babies could save money for the state, or that the democratic will of the legislature should always be obeyed by the judges. Does the second, ineective, statute have any legal force at all? It would seem that it has some, limited, legal eect. The second statute can only be set aside because of the rst. The judges could not, legally, set aside the second statute for other reasons. They could not, for example, declare the second statute invalid because it damaged the countrys international reputation, or because killing the babies would be an unproductive use of state ocials time. The second-order exclusionary force of the killing statute is not, therefore, entirely removed by the protective statute. It has some residual force. There is a clear analogy to be drawn between this example and the way in which the European Communities Act 1972 was treated in Factortame. Following Factortame, the most recent statute need not constitute an absolute reason for decision. Statutes retain some exclusionary force, but they cannot exclude contrary provisions of directly eective European law. In Factortame, the Merchant Shipping Act 1988 provided that shing boats could only be registered as British vessels if they were three-quarters owned by British companies, and

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three-quarters of the directors were British citizens.63 When the court was called on to considered the validity of the 1988 statute, certain conicting rst-order reasons were excluded, such as, for example, that the measure would reduce the income generated by the registration of foreign boats, or that the Spanish shermen would be upset by the rule. The statute did not, however, exclude considerations of European law; in particular Articles 52 to 58 of the European Community Treaty. The 1972 Act functions like the protective statute in the baby-killing case. Having decided that the 1988 Act was contrary to directly eective Community law, the 1972 Act was then taken to require that the judges ignore the purported reasons for action contained within the 1988 Act. Even if the sovereignty theorists were right to ascribe statute the force of an absolute reason for decision before Factortame, it is clear that this is no longer the case. The decision of the House of Lords has enabled the 1972 Act to limit the exclusionary force of statute, and judges are now entitled, indeed obliged by the law, to consider some reasons that run contrary to statute. To recap: two fundamental aws have been exposed in the reasoning of the sovereignty theorists. First, they were wrong in supposing that a legal system must possess a single supreme law-making institution. A legal system can contain a plurality of unranked sources, identied by irreconcilable rules of recognition. If these rules do not produce conict, or do not often produce conict, legal systems may easily contain them. Secondly, the theorists were wrong to assume that statutes have the force of absolute reasons; or, if they were not wrong to assume this when writing, this assumption cannot be maintained after Factortame. Both these criticisms tackle the sovereignty theorists on their home ground. Both assume that a satisfactory explanation of the relationship between the courts and Parliament can be given by examining a cross-slice of constitutional history; focusing on a particular moment in time. A further, deeper, objection will develop in the remainder of the essay: that even this assumption is awed. A full understanding of the relationship must be able to explain how this relationship can change over time.

3. A More Complex Model of Judicial Reaction to Statutes

Any satisfactory explanation of the relationship between the judges and Parliament will require a far more complex model than that used by the sovereignty theorists. There are six dierent ways in which a judge may react to a relevant statute: (i) (ii) (iii) (iv) (v)
63

the judge may apply the statute; the judge may develop the statute in a manner required by the law; the judge may develop the statute in a manner not required by the law; the judge may develop the statute in a manner forbidden by law; the judge may change the statute in a manner required by the law;

Section 14(7). The facts of the case have been greatly simplied for the purposes of this example.

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(vi) the judge may change the statute in a manner not required by the law. I believe this list to be complete, although it will often be impossible to decide into which category a particular case should be put.

A. Application of the statute

A judge applies the statute when she decides that the facts of the case fall within the central meaning of the statutes text. She treats the statute as providing a conclusive reason for her decision. There is no need for her to resort to other sources of law to clarify the text.

B. Development of the statute in a manner required by law

When the text of the statute is vague, or possesses multiple possible interpretations, the judge must develop the statute. That is, she claries the text by preferring one meaning over another, or she authoritatively states that a vague term covers a particular situation. In such a case the statute is treated as providing an absolute reason for decision, but it does not, in itself, provide a conclusive reason for decision. Where development of the statute is required by the law, the law, but not the statute, may provide a conclusive reason for action. Development is required by the law when a pre-existing rule of interpretation is applicable. For example, when the word he appears in a statute it could be interpreted as signifying the gender-neutral use of he, or the masculine use of he. This ambiguity is resolved by another rule of law, contained within the Interpretation Act 1978, s 6(a), which conclusively gives preference to the former construction.

C. Development of the statute in a manner not required by law

Sometimes the law fails to provide a conclusive reason for decision. The statute is vague, or uncertain, and rules of interpretation fail to resolve the matter. In such a situation there is a gap in the law. This does not mean that the judge has unfettered discretion to do as she pleases. She may still be guided by legal reasons, even if these are not decisive.64 The law may restrict her options for developing the statute by authoritatively ruling out certain possible interpretations, or by indicating that some solutions are preferable to others.65

D. Development of the statute in a manner forbidden by law

It is possible to imagine a situation in which the statute was capable of multiple meanings, but although another rule of law authoritatively preferred one meaning
J. Gardner, Legal Sources and Permissive Gaps (1988) 8 OJLS 457. A good example of such a case is BP Exploration Co. (Libya) v Hunt (No. 2) [1979] 1 WLR 783 in which Robert Go J considered the implications of The Law Reform (Frustrated Contracts) Act 1943, drawing on general principles of unjust enrichment to interpret the Acts meaning. His development of the Act was not required by the law, but was within the bounds of the possibilities left open by the statute. See further, A. Haycroft and D. Waksman, Frustration and Restitution [1984] JBL 207, and the comments of the Court of Appeal in the same case at [1981] 1 WLR 232, especially 243.
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to the other the judge still adopted the alternative meaning. The law, but not the statute alone, would provide a conclusive reason for a particular decision. By adopting the alternative meaning the judge would have developed the statute, but changed the law. I am not aware of such an instance in English law, but it is a logically possible occurrence.

E. Changing the statute in a manner required by the law

A judge changes the statute in accordance with the law when the statute is clear and unambiguous, but another rule of law limits its exclusionary scope and directs action contrary to the reason contained within the statute.66 According to classical sovereignty theorists this should only happen in the English system when an older statute gives way to a newer statute. Otherwise statutes were the supreme source of law, and took precedence over all conicting legal rules. Until recently this position might have been defensible; Factortame shows that it is no longer true. In the Factortame case the House of Lords eectively declared that the exclusionary reach of statutes had been limited by the European Communities Act 1972. The Merchant Shipping Act 1988, though the most recent statute bearing on the situation, was not an absolute reason for decision; it did not shut out all those reasons that were in conict with it. The conicting reason for decision contained within the EC Treaty remained valid and binding on the court. The EC Treaty, through the 1972 Act, provided a conclusive reason for decision. It required that the court strike down the statute, and further excluded the court from considering reasons contrary to this course of action. Following Factortame, any English statute may have limited exclusionary scope. If it conicts with directly eective European Treaty provisions it will not provide an absolute reason for action.67

F. Changing statutes in a manner not required by the law

When judges change statutes in a manner not required by the law, the law on the case before the judge is clear, but she nevertheless changes the statute in order to produce a dierent result. Before examining the cases within this section, a word of warning must be given. Though it is a relatively safe contention that judges have sometimes changed statutes, demonstrating that this has occurred in any particular case will always be controversial. Judges have sworn an oath to apply the law, and any alteration to statutes not permitted by the law will be a breach of that oath. Consequently, there are no cases in which judges have expressly changed statutes contrary to the law. All the cases cited below are
66 The boundary between development and change is endlessly contestable, and it is not part of my task in this article to attempt to defend any particular version of the divide. All I seek to contend here is that a dierence can be drawn between adopting a particular reading of a statute when there are multiple possible readings, and changing the statute by adopting a view of the law that cannot be reconciled with the text. 67 It is possible that this category of judicial action will become more signicant as supporters of human rights become more powerful. See J. Laws, The Constitution: Morals and Rights (1996) PL 622; T. Allan, The Limits of Parliamentary Sovereignty (1985) PL 614.

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therefore contestable. All that I seek to establish for the moment is the existence and the outline structure of the sixth category. My reading of the cases can be challenged without these contentions being questioned. There are two groups of examples of judges changing statutes in ways not required by the law. One group is less radical than the other. The less radical collection of examples are those in which a judge has preferred an earlier Act of Parliament to a later one. In such instances the judge has rejected that aspect of the sovereignty theories which holds that the most recent Act of Parliament has supreme legal force, but still accords Parliament the position of supreme legal source within the system. In the more radical category are those cases in which the judge denies Parliament the role of supreme legal source, and substitutes what she believes the law ought to be for that contained within the statute. The Factortame case is a clear instance in which one statute, the 1972 Act, was given stronger legal force than a later statute, the Merchant Shipping Act 1988.68 At the time of the Factortame decision, there was no legal precedent for the suspension of an Act of Parliament. The case law that existed strongly supported the view that an earlier Parliament could not bind a later Parliament.69 Nevertheless, the House of Lords preferred the 1972 Act to the 1988 Act. In doing so, they were almost certainly acting for a political, rather than a legal, reason.70 There is political agreement that Britain will remain part of the European Union for the foreseeable future. As a consequence of this membership, the Lords felt that they ought to give precedence to certain aspects of European law. If the House of Lords had denied that they possessed the power to suspend Acts of Parliament, Britains ability to take part in the European Union would have been weakened.71 When the House of Lords decided Factortame they acted contrary to the law as it then stood. However, to decide in accordance with the law would have had the eect of frustrating the general political consensus on the European Union. The House of Lords changed the law in order to reect this consensus. The second category of cases provides a more fundamental challenge to the concept of sovereignty. In these cases the judges have denied the supremacy of Parliament in order to better achieve a particular moral objective. First, there are those cases in which judges believe that the statute has become outdated, and change the statute in order to modernize it.72 Secondly, there are those cases in which the judges have changed statutes because they nd elements of them morally undesirable.
68 See also Chorlton v Lings (1868) LR 4 CP 374; Nairn v University of St Andrews [1909] AC 147; and AttGen v Wilts Dairies (1921) 37 TLR 884, (1922) 91 LJKB 897. 69 For example, Vauxhall Estates Ltd v Liverpool Corp. [1932] 1 KB 733; Ellen Street Estates v Minister of Health [1934] 1 KB 591; Pickin v British Railways Board [1974] AC 765; Duport Steels v Sirs [1980] 1 WLR 142; Manuel v Att-Gen [1983] Ch 77. 70 See especially, Lord Bridges reasoning, above n 52 at 6589. 71 T. Allan Parliamentary Sovereignty; Law, Politics, and Revolution (1997) 113 LQR 443 at 445. 72 See also F. Bennion, Statutory Interpretation (3rd edn, 1997) section 288 on updating construction.

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Criminal law provides many examples of judges altering statutes in order to maintain the eectiveness of the law. A particular problem for the judiciary has been the Oences Against the Person Act 1861. On several occasions the judges have eectively rewritten the statute in order to protect the eciency of the criminal law, causing one academic to describe the Act as a . . . wonderland where words do not bear their ordinary meanings.73 For instance, bodily harm has been inated to include psychiatric harm,74 and inicts has been judicially replaced with causes.75 The need for, and good sense of, these changes is beyond question; nevertheless, they constitute a radical departure from the orthodoxies of sovereignty. An Act need not be old to have become outdated.76 Sometimes judges have to administer rst-aid to quite recent statutes whose wording has proved to be inadequate. Examples of strained construction include a bicycle that became a carriage,77 and a married woman who discovered, to her gratitude and surprise, that she was single for the purposes of an Act.78 More seriously, in a recent case a psychopath was refused access to his birth certicate in order to protect his natural mother from harm. The court refused to accept the apparently unqualied right of access contained within the statute, creating an exception in situations where the exercise of the statutory right might enable a crime to be committed.79 Those cases in which judges have changed a statute because the statute conicts with their own moral convictions are harder to nd. Judges are aware of the need to preserve an appearance of political impartiality,80 and there is no case in modern English law in which a court has explicitly altered a statute because it regards the statute as immoral. Nevertheless, clear examples of such activity can be given. First, in the recent case of R v R81 the House of Lords expanded the law of rape to include husbands who raped their wives. If one reads the reasoning of Lord Keith, it appears that nothing constitutionally unusual has occurred; the case is presented as a normal exercise in statutory construction. The statutory provision in question was section 1(1) of the Sexual Oences (Amendment) Act 1956. This stated:
For the purposes of section 1 of the Sexual Oences Act 1956 . . . a man commits rape if (a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it; and
G. Virgo, Oences Against the PersonDo It Yourself Law Reform (1997) CLJ 251. Oences Against the Person Act 1861, s 20; Chan-Fook [1994] 1 WLR 689. 75 Oences Against the Person Act 1861, s 20; Burslow [1997] 1 Cr App R 144. 76 Above n 72, sections 158 and 287; also S. Hiranandani, Legislative Drafting: An Indian View (1964) 27 MLR 1. 77 Taylor v Goodwin (1879) 4 QBD 228. 78 R v Pilkington (1853) 2 El & Bl 546; 118 ER 872. 79 R v Registrar General, ex parte Smith [1991] 1 FLR 255. 80 See in particular Magor & S. Mellons RDC v Newport Corporation [1952] AC 189, per Lord Simonds at 191; Duport Steels v Sirs [1980] 1 WLR 142, per Lord Diplock at 157, Lord Keith at 168; R v HM Treasury, ex parte Smedley [1985] QB 657, per Sir John Donaldson MR at 666. 81 [1992] 1 AC 599.
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(b) at that time he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it.82

The use of the word unlawful prexed and qualied the following denition of non-consensual intercourse. A plain reading of the statute would entail that certain types of non-consensual intercourse were legal. It was commonly believed within the legal world that the word had been inserted to preserve the common law rule that a husband could not be criminally liable for raping his wife.83 When the Criminal Law Revision Committee reconsidered the issue of marital rape they assumed that the wording of the Act maintained the immunity. They supported the perceived approach of the 1976 Parliament, and recommended the rule be retained.84 When Lord Keith considered the section he declared that unlawful was mere surplusage85 and added nothing to the meaning of the section. His reading of the statute ran contrary to normal principles of construction, which hold that in criminal cases ambiguous statutes should always be interpreted in favour of the accused.86 Lord Keith was unable to cite any legal authority for the proposition that a husband could commit rape against his wife. The principal reason he gave for his decision was that in modern times any reasonable person must regard that conception (the immunity) as quite unacceptable . . ..87 This is a moral, not a legal, reason for the decision. The House of Lords did not admit that they were changing the law in R v R. Had they done so, dicult questions about retrospective criminalization would have been raised. When the case was taken to the European Court of Human Rights88 a strong case was put forward under Article 7, claiming that the defendants could not have known that rape within marriage constituted a crime. Though the court rejected their claims, the judges found it hard to argue that Lord Keith had not changed the law. They upheld the decision on the basis that the change was foreseeable and, more importantly, that the rights of the wife of the marital rapist also need protection.89 The change eected by the Lords had retrospective eect. Not only would future marital rapists nd themselves caught by the criminal law but earlier oences were also criminalized; judges in future cases would be obliged to hold that the rule set down in R v R existed prior to that decision. Though the judges may be unable to admit that the law had changed, commentators at the time had little doubt that R v R was an example of judicial law-making, and that a

My emphasis. For judicial endorsement of the rule, see Sir Matthew Hale, History of the Pleas of the Crown (1736) Vol. 1 at 629; R v Cogan and Leek [1976] QB 217; R v Steele (1977) 66 Cr App R 22; R v Caswell [1984] Crim LR 111. 84 Fifteenth Report, Sexual Oences (Cm 9213) paras 2.642.69; see also J. Tempkin, Rape and the Legal Process (1987) 6093. 85 Above n 81 at 623. 86 Secretary of State for Social Security v Tunniclie [1991] 2 All ER 712; above n 72, section 271. 87 Above n 81 at 616. 88 S. W. v United Kingdom, Judgment of 22 November 1995, Series A no. 335-B; C.R. v United Kingdom, Judgment of 22 November 1995, Series A no. 335-C. 89 S. W., above n 88 at para 44; C.R., above n 88 at para 42.
83

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statute had been changed contrary to the will of the enacting Parliament.90 This was not a case in which an old statute was altered by the courts to catch up with developed popular morality. The statute was only 14 years old, and the Criminal Law Revision Committee had supported the exemption as recently as 1984. Support for the change in the academic world was far from unanimous.91 In R v R the House of Lords changed a statute because they believed the result produced by that statute was immoral. It is impossible to reconcile the decision with the classic models of sovereignty. Examples of judicial activism of this type could be multiplied. In the sphere of labour law, the judges and Parliament conducted a running battle during the rst part of this century over the liability of trade unions. Parliament repeatedly attempted to confer immunity on trade unions, only to see the judges circumvent this immunity by devising novel forms of liability that lay just outside the statutes reach.92 The common law judges did not believe that the trade unions ought to be permitted to cause damage to employers, and escape liability for the harm done. They believed, like Lord Keith in R v R, that the statutes pursued a morally repugnant objective. Through the common law, they altered the practical eect of the legislation, ensuring that the unions remained liable for harm, and the employers position was protected. Similarly, ouster clauses in statutes have long suered from exceptionally narrow construction;93 the judges eager to protect the citizens right of access to the courts.94 Allan has also recognized the existence of judicial activities of this nature. However, he relies on these cases to support a number of propositions that go a good deal further than the claims argued for here. First, he claims that theorists are compelled to either hold such activism as legally sanctioned, or as illegitimate.95 According to Allan, a positivist understanding of law not only requires us to hold that law is to be found only in legal sources, but also that judges duty to apply law is absolute.96 If judges do engage in the activities set out in the earlier part of this section, and it is assumed that these activities are legitimate, two consequences follow. First, the law must already contain some principles justifying the decisions. Secondly, positivism is shown to be an inadequate theory of law, unable to accommodate the existence of such principles.
90 M. Giles, Judicial Law-making in the Criminal Court [1992] Crim LR 407; J. Barton, The Story of Marital Rape [1992] 108 LQR 260. 91 G. Williams, Rape is Rape (1992) 142 NLJ 11; responded to in H. Fenwick, Marital Rights or Partial Immunity? (1992) 142 NLJ 831. 92 See the Criminal Law Amendment Act 1871 and the Trade Union Act 1871; R v Bunn (1872) 12 Cox 316, addressed by the Conspiracy and Protection of Property Act 1875, s 3; Quinn v Leathem [1901] AC 495, addressed by the Trade Disputes Act 1906, s 1; Rookes v Barnard [1964] AC 1129, addressed by the Trade Disputes Act 1965; Torquay Hotel Lt. v Cousins [1969] 2 Ch 106, addressed by the Trade Unions and Labour Relations Act 1974. 93 See generally P. Craig, Administrative Law (3rd edn, 1994) ch 16; and R v Medical Appeals Tribunal, ex parte Gilmore [1957] 1 QB 574; Anisminic Ltd v Foreign Compensation Commission [1969] 1 AC 147; South East Asia Fire Bricks v Non-Metallic Products [1981] AC 363. 94 See also R. Cooke, The Struggle For Simplicity in Administrative Law in M.Taggart (ed.), Judicial Review of Administrative Action in the 1980s (1986) 10, for a surprisingly frank judicial discussion, and R v Lord Chancellors Department, ex parte Witham [1998] QB 575. 95 T. Allan, Parliamentary Sovereignty: Law, Politics, and Revolution (1997) 113 LQR 443 at 445, 448. 96 Above n 71 at 616.

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Allan then develops various constitutional principles from notions such as democracy and political morality, that he argues already form part of the law.97 Parliament must be taken to have legislated in accordance with these principles in order to uphold the sovereignty of the people.98 It is impossible to do justice to Allans contentions here. However, it must be noted that his analysis of the cases, and of positivism,99 is unsatisfactory in a number of respects. First, there is no reason why a positivist should necessarily endorse the view that a decision made by a judge is either legally legitimate or illegitimate. A positivist might argue that the law required a particular decision but that the judge, as an ocer of the state in a position to wield de facto power, ought to decide to the contrary. Positivism ought not to be confused with legal conservatism. Secondly, by equating change contrary to the law with illegitimate change, Allan is compelled to argue that the sixth category of judicial activity does not exist, or, if it does, is of necessity illegitimate. There is no room in Allans theory for change in the law, only for evolution and interpretation. This can create some peculiar articialities: on Allans account, the strongest presumption of legislative intent would be to deny the statute any application at all.100 Allans diculties exemplify the dilemma facing those who would wish to defend radical decisions of the courts, but struggle to nd a legal basis on which to base their defence. There is a temptation to argue that if a change in the law was for the good, or necessary, it must have been legally mandated, and reason backwards to discover a principle or rule justifying the change.101 Sometimes higher level legal principles can be shown to exist that can be invoked by courts to help them in dicult constitutional times.102 This is not always the case. Sometimes the pressure on the courts to reach a result, even to reach the morally right result, renders a decision contrary to existing law a necessity. It does not help us understand these pressures, and the reactions to them, if we pretend that all such changes are legally mandated. If support for the decision cannot be found in legal texts, we ought not to invent principles to provide a retrospective legal justication for the change.
Ibid at 623. T. Allan, Legislative Supremacy and the Rule of Law: Democracy and Constitutionalism (1985) 44 CLJ 111 at 129. See J. Daley, The Bases for the Authority of the Australian Constitution (1999) D Phil thesis, Oxford University, for a healthily sceptical discussion of constitutional theories premised on the will of the people. 99 Like Allan I talk of positivists as a group. Though this is necessary in order to counter his objections, caution must be exercised when discussing legal theorists in this fashion. There is no organized team of positivists with common views and agendas. 100 Above n 96 at 619; T. Allan, Law, Liberty and Justice (1993) 17, 2679. 101 M. Kadish and S. Kadish, Discretion to Disobey: A Study of Departure From Legal Rules (1973) sometimes steer close to this in their discussion of the jurys right to deliver a perverse verdict: see ch 2. They cautiously suggest that the oce of the judge might also endow her with discretion to disobey mandatory rules in much the same way as the jury (at 90). 102 J. Eekelaar, Principles of Revolutionary Legality in A. Simpson (ed.), Oxford Essays on Jurisprudence (Second Series) (1973). Eekelaar is on weaker ground in his discussion of the possible judicial reaction to a statute that expressly derogated from European law, arguing that the value of continuity could provide judges with a legal reason to change the rules governing legislative competence: J. Eekelaar, The Death of Parliamentary SovereigntyA Comment (1997) 113 LQR 185.
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4. A New Approach to Judicial Legitimacy

There are two responses that could be made to the cases I have set out as examples of statutory change contrary to law. In so far as my reading of these cases is accepted, the conduct of the judges could simply be condemned as constitutionally unacceptable activism. All lawyers know that sometimes judges make mistakes, that they go beyond the proper bounds of their oce, and trespass into areas that would have been better left to Parliament. But the cases do not seem to be simple aberrations. They happen too frequently, and are too easily accepted by those within the legal system to be ignored. If we believe that in at least some of those cases the judges were acting in some sense legitimately, how can this notion of legitimacy be contained within jurisprudence? We have already seen how the sovereignty theorists failed to explain many aspects of the English legal system. They were wrong to assume that the English legal system must, as a matter of logic, provide a clear ranking of the sources of law. In some circumstances the ranking may be unclear. The rules of recognition within the system may identify contradictory norms. Further, the notion that statutes must provide absolute exclusionary reasons was rejected. It is perfectly possible for a legal system to allow statutes only limited exclusionary force. After Factortame this is true of the English legal system. These criticisms of the sovereignty theorists are powerful, but they do not go to the heart of their theories. Even when modications to the sovereignty model are made, the model still cannot accommodate the decisions of the courts in which statutes are changed contrary to the law. For such a theory a more radical reform is required. It is necessary to introduce another distinction put forward by Joseph Raz.103 Raz distinguishes between theories of momentary and continuing legal systems. A momentary legal system is a cross-section of a continuing legal system, it exists at a particular point in time. The criteria for the identity of rules in a momentary system are contained within the laws of that system. The rules of recognition tell judges where to nd the laws and, generally, how the conicts that arise between the sources of law can be resolved. Signicantly, these rules of recognition will not dene the boundaries of the legal system; they will not, as Hart hoped, enable us to distinguish between the legal systems of dierent countries. When we look at a continuing legal system, similar questions are raised. In particular, we will want a test to determine whether two momentary legal systems form part of a single continuing legal system. It seems likely that a theory of a continuing legal system will be, at least in part, a political theory about the identity of institutions.104 The way in which we will know whether two momentary systems form part of one continuing legal system will be by ascertaining the political continuity of its institutions.105 Similarly, it is these institutions that draw diverse sets of rules into a single legal system.
103 Raz, above n 9 at 345 and ch 8; also J. Finnis, Revolutions and Continuity of Law in A. Simpson (ed.), Oxford Essays in Jurisprudence (Second Series) (1973); J. Finnis, The Fairy Tales Moral (1999) 115 LQR 170. 104 J. Raz, The Inner Logic of the Law Ethics in the Public Domain (1994); Finnis, above n 103 at 69. 105 J. Raz, The Institutional Nature of Law, above n 3.

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The sovereignty theorists were expounding theories within the constraints of a model of a momentary legal system. This meant that they were unable to accommodate changes in the legal rules that could not be explained by reference to the rules of recognition that were present within their slice of the on-going English system. Their theories were unable to deal with changes to the law that occurred contrary to the law. So, for example, after Factortame Wade was forced to declare that there had been a revolution, and appeared to renounce the entire enterprise of constitutional law.106 Applying his understanding of sovereignty, any change in the momentary legal system for which the rules of that system did not provide was an abandonment of the old legal system in favour of a new legal system. He was unable to allow a progression between the two slices because he lacked a theory of the English legal system as a continuing force. This is like trying to conduct constitutional theory with one hand tied behind our backs.107 Plainly, a sensible understanding of the relationship between the judges and Parliament must be able to operate in both areas of theory. It must be able to show what the law is at any one point, and yet also be able to show how judges can successfully change the law contrary to the law, within the continuing legal system. A developed theory of the English constitution within a model of a continuing legal system would show that the judges have a dual authority. They act in two spheres. Their rst area of action is the legal sphere. The law108 empowers them to make decisions in certain ways, and acts as a constraint on their reasoning processes. This element of their role can be adequately represented within a model of a momentary legal system. Their second area of action is within the political sphere. It is this aspect of the judges competency that can be forgotten if the signicance of legal systems as a continuing force is overlooked. Judges have a political as well as a legal role in the English constitutional framework. In some situations they appear to be accorded political authority by the constitutional system to make decisions contrary to the existing law. On rare occasions this political authority extends to the alteration of statutes of Parliament. Even if the classical, Wadian, doctrine of sovereignty is, or was, an aspect of the English legal system it only delimited the legal reasons under which a judge could reach a decision. The doctrine never prevented the judges from changing statutes for non-legal reasons. The relationship between the courts and Parliament cannot be fully captured in terms of a legal analysis. Such an analysis misses the political identities of Parliament and the courts as institutions within a constitutional structure, whose relationship is partly based in brute political power, with the balance between these institutions shifting over time. The previous paragraph makes a descriptive claim. It argues that the judges are, de facto, treated as having authority within the English system. Their authority
106 W. Wade, SovereigntyRevolution or Evolution? (1996) 112 LQR 568; see also Eekelaar, above n 102, and Finnis, above n 103 at 5061. 107 Finnis makes a similar criticism of Harts rule of recognition: Finnis, above n 103 at 5561. 108 By which I mean both statute rules and common law rules.

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does not run out when their legal power is exhausted. The truth of this factual statement can be established by reconsidering the cases discussed under category F above. In all of these cases the decision of the court was accepted by the actors within the English system, even though it was made contrary to the statute. In Factortame the provisions of the Merchant Shipping Act were suspended, and the Spanish shermen were able to sh under a British ag. In R v R the marital rapist was jailed. In the labour law cases the unions were compelled to pay the damages awarded against them. In the judicial-exclusion clause cases the bodies obeyed the various orders made against them. In these examples, the decisions of the judges were ecacious, and were regarded as binding by the ocials of the system. The force of these decisions owed from the judges political legitimacy, not from their application of the law. All that the previous paragraphs contend is that judges wield political, as well as legal, power. I have described them as having de facto authority because their exercise of this power can be shown to be eective; the judges are obeyed. I have not attempted, though I believe a good attempt could be made, to show that the judges are justied in acting within this political sphere. If such an attempt were successful it would show that the judges have legitimate authority; that not only do the judges make decisions contrary to the law, but that they are right so to do.109 The scope of this authority would depend partly on the position of the courts in particular societies at particular times. Nevertheless, the structure and nature of the courts might provide some general limitations on the type of non-legal reasons that judges ought to be prepared to act on. Though such reasons could be termed political, judges certainly ought not to be partisan. The debates that are carried on in Parliament cannot be duplicated in the courts. The courts have a dierent structure and legitimacy to the House of Commons. This means that the type of reasoning process they can undertake should dier fundamentally from that of the legislature. These structural limitations would impose a framework of restraint around the reasons that the judges could legitimately adopt. Is the law simply what the judges say it is? It might appear that admitting the judges operate politically as well as legally is to adopt a crude realist analysis of the English legal system. This would be a mistake for two reasons. First, admitting that the courts can alter the law contrary to the law is not the same as saying that there was no law before they made their decision. Statutes are law even if they are never raised before a court. When a judge changes the law he alters the legal world; a comparison of the momentary system before the decision with another slice taken after the decision would reveal a change in the mesh of legal rules. We can therefore distinguish between the two questions most often asked of lawyers: what is the law? and what will the judge decide?. Secondly, judges make mistakes. They can make legal mistakes when they think they are acting within the bounds of law, but are actually in error in their understanding of
109

I hope to explore this possibility further in a future article.

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those bounds. They can also make political mistakes when they go beyond the limits of their political authority. The latitude they can exercise towards statutes depends on various factors, including the political authority of the drafters of the text, and on the subject matter of the statute. The judges can mistake their political authority. This happened in Anderton v Ryan,110 in which the House of Lords eectively ignored a statute that extended criminal liability for attempting the impossible.111 The decision was contrary to law, but it also transpired that the decision was politically illegitimate: a bare year later, the House was forced to overturn the decision.112 It had exceeded the politically acceptable bounds of judicial activism. Sometimes when the judges change the law contrary to the law they create a legal reason for altering statutes in future cases. This happened in Factortame. Readings of Factortame abound, but the best view is that the House of Lords held that the European Communities Act 1972 had restricted the exclusionary scope of future statutes. On the law that existed before Factortame, this restriction should not have been possible. So, on the existing law the 1972 Act should not have been able to aect the exclusionary scope of the 1988 Act. By changing the law to enable this restriction the House of Lords created a new legal reason for action. Their decision altered the criteria for legal validity that would be applied in future cases. Conict with directly eective Community law now provides a legal reason against the validity of the challenged statutes rst-order reason for action. Factortame altered one of the rules of recognition in a way that was not possible within the pre-existing legal order. This should be contrasted with R v R. In R v R the law of rape was changed, and to that extent a new legal reason for decision was created, but the decision did not aect the manner in which judges should, as a matter of law, interpret statutes. The non-legal reason for the decision given by Lord Keith was explicitly related to the particular issue before the court. In future cases the mere fact that a reasonable person would have regarded a proposition of law as unacceptable will not be a legal reason against that proposition.

5. Conclusion
Harts rule of recognition remains a useful tool, but must be stripped of its odd, unrule-like, qualities. A rule of recognition is simply a rule that identies other rules. We nd these rules in legal sources, such as judgments and statutes. This might seem to pose a risk of innite regress; we can only identify legal sources
110 [1985] AC 560. Their decision is described by Professor Clarkson as blatantly ignoring Parliaments intentions: C. Clarkson, Understanding Criminal Law (1987) 111; see also G. Williams, The Lords and Impossible Attempts, or Quis Custodiet Ipsos Custodes? [1986] CLJ 33. 111 Criminal Attempts Act 1981, s 1. 112 R v Shivpuri [1987] AC 1 at 20: Lord Bridge ruefully commented: If I could extract from the speech of Lord Roskill or from my own speech [in Anderton]a clear and coherent principle distinguishing those cases of attempting the impossible which amount to oences under the statute from those which do not, I should have to consider carefully on which side of the line the instant case fell. But I have to confess that I can nd no such principle.

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by use of a rule of recognition, but can only know what these rules are by looking at the sources. The vicious circle can be broken by giving full weight to the political nature of legal systems. One of the ways in which we identify legislatures and courts is by the type of power they exercise and the manner in which they exercise that power. Having identied these institutions, we can then identify the rules of recognition by looking at what they say the rules of the system are. If this diverges too far from their practice we can conclude they are lying to us; but normally it seems appropriate to conclude they will be telling the truth. I have argued that an adequate account of the relationship between the courts and Parliament must recognize that judges have a dual authority. They have legal authority to apply, develop, and change statute within the legal sphere. This activity is governed by the law. They also possess a political authority to make decisions contrary to the law, a political authority that they have exercised on many occasions over the last century. It is only by adopting this dualist model that we can begin to understand when, and why, the judges change statute law.