Pragmatism and Theory in English Law - College of Social Sciences ...

Theory Beneath the Surface 151
though it were being created or given legitimacy by the
decisions themselves. Nor can we point to any serious historical
conflicts between Parliament and the courts to suggest
that the present sovereignty of Parliament has in some
sense been the product of social or political conflict.
No, the truth is that we have drifted into the belief in the
sovereignty of Parliament with the aid of a good deal of
theory, and this theory was largely the work of academics,
in particular, of course, of Dicey. "The doctrine of parliamentary
sovereignty," says Professor Heuston, "is almost
entirely the work of Oxford men." 8 Similarly, Professor
Simpson has written that the explanation for the general
acceptance today of the traditional theory of parliamentary
sovereignty,
"is very largely connected with the fact that the
basic book and the best written book is Dicey, and it is
around Dicey that nearly all lawyers study constitutional
law. This has been so for a very long time now.
Dicey announced that it was the law that Parliament
was omnicompetent . . . The oracle spoke, and came
to be accepted." 9
Of course we can trace it back further than Dicey, because
we can find signs of it in Blackstone's Commentaries, (based
on his lectures at Oxford as Vinerian Professor) where the
theory of sovereignty is stated, not just as a fact of the
British Constitution, but as a necessary rule of political and
legal logic. "[TJhere is and must be," says Blackstone, "in
all [governments] a supreme, irresistible, absolute, uncon-
8 Essays in Constitutional Law (2nd ed., 1964), p. 1. Apart from Dicey and
Blackstone, Heuston mentions also Hobbes (of Magdalen Hall) and
Anson, Bryce, and Holland, all of Oxford.
9 "The Common Law and Legal Theory," in Oxford Essays in Jurisprudence
(ed. Simpson 1973), p. 96.