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Sceptical Essays on Human Rights$
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Tom Campbell, Keith Ewing, and Adam Tomkins

Print publication date: 2001

Print ISBN-13: 9780199246687

Published to Oxford Scholarship Online: January 2010

DOI: 10.1093/acprof:oso/9780199246687.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 26 February 2021

Legislative Sovereignty and the Rule of Law

Legislative Sovereignty and the Rule of Law

(p.61) 4 Legislative Sovereignty and the Rule of Law
Sceptical Essays on Human Rights

Jeffrey Goldsworthy

Oxford University Press

This chapter challenges the assumption that legislative sovereignty is incompatible with the rule of law. The rule of law is first and foremost a political principle, an ideal or aspiration that may or may not be guaranteed by law. Most, if not all, common law jurisdictions treat the rule of law as a principle of common law, which unquestionably governs the decisions and actions of the executive and judicial branches of government. In addition, it is sometimes expressly mentioned in written constitutions, or regarded as implicit in them. Whether it is common law, constitutional, or both, the principle is sometimes said to govern the legislature as well as the other branches of government, and to be capable of overriding legislation. Even if legislative sovereignty is inconsistent with the rule of law, it might nevertheless be justified on the ground that in this case the rule of law is outweighed by the principle of democracy. This chapter also refutes the argument that bills of rights are required by the rule of law.

Keywords:   legislative sovereignty, rule of law, democracy, political principle, common law, bills of rights, legislature

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