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

152 Theory Beneath the Surface
trolled authority, in which the jura summa imperii, or the right
of sovereignty, resides." 10 Well, elsewhere in the Commentaries
Blackstone says something quite different, 11 and suggests
that Parliament is not indeed omnipotent, and that it cannot
pass laws which are absurd or manifestly contrary to
reason, and it is these dicta, rather than the ones I first cited,
which tend to be quoted in American books to this day. If
we want to know why in England it is the other way about,
we must look to Dicey's theory to give us the answer.
Now the orthodox theory of parliamentary sovereignty
seems uncomfortably close to the kind of elitism which I
earlier linked with the traditional pragmatism of the English
legal system. If we the citizens, or even they the judges,
ask why Parliament must be treated as an omnipotent legislature
and why Acts must always be held to be valid law,
the traditionalist can no longer answer, as Blackstone did,
that every government must have sovereign powers. The
standing example of federal systems, like that of the United
States, has long demonstrated that there is a crucial distinction
between a sovereign nation and a sovereign legislature,
and it is now demonstrably untrue to say that a sovereign
state must always have a sovereign legislature with power
to do anything. So the only answer the traditionalist can
give to our question is, in effect, to say: "There is no reason
why Parliament must be treated as absolutely sovereign. It
just has been for a long time the law of our constitution, and
it just is today the law of our constitution." But these are
not very appealing as reasons. Indeed, to suggest that
because parliamentary sovereignty has been the law of the
constitution for a long time, and that therefore it should
10 Bl. Comm. I, p. 49.
11 Bl. Comm. I, p. 91, and p. 160.