ON THE NATURE OF AND SOME CHALLENGES TO PARLIAMENTARY SOVEREIGNTY: A JURISPRUDENTIAL PERSPECTIVE
Öz
The article ultimately claims that the classical formulation of parliamentary sovereignty, properly understood, survives the most contemporary and relevant challenges it faces. The first part is reserved for the examination of the content and the source of the principle. The Diceyan conception of the principle is elaborated and defended against Wade’s version. Then, based on the Allan – Goldsworthy argument, the article determines that it is theoretically more appropriate to conceive of the principle as the rule of recognition. The second part focuses on the most contemporary and relevant challenges to the principle. These are the Parliament Acts 1911 and 1949, the European Communities Act 1972, and the Human Rights Act 1998. The challenge posed by the Parliament Acts fails because the Acts do not legally restrict the Parliament. Similarly, based on the distinction between normative hierarchy and the primacy of application, the European Communities Act needs to be conceived of as relating to the obligations of the law-applying officials and not the Parliament. Lastly, the four challenges raised by the Human Rights Act fail based on discussions surrounding the doctrine of implied repeal, the concept of normative collision, and the distinction between constitutional and ordinary statutes.
Anahtar Kelimeler
parliamentary sovereignty, normative hierarchy, the rule of recognition, common law, implied repeal.
Teşekkür
An earlier version of this article was presented online at ‘Genel Kamu Hukukçuları Kolekyumu’ (The Colloquium of General Public Lawyers) on 11 April 2021. I would like to thank Thomas Adams (University of Oxford) very much for his insightful comments on a draft of the paper. I am also indebted to Melih Çiçekci (Bursa Uludağ University) and Salih Taşdöğen (Bursa Uludağ University) for their comments on the earlier versions of the paper. Lastly, I would like to thank to anonymous reviewers for their comments and criticism. All remaining errors are my own.
Kaynakça
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