From Parliamentary Sovereignty To Judicial Supremacy

This dissertation mainly discusses the power reconstruction in the British constitutional system since the mid-20 th century. After canvassing the forming of the Parliamentary Sovereignty, the tradition of the Rule of Law and the relationship between the former two, this dissertation will attempt to draw a conclusion as below: the power reconstruction in the British constitutional system has been completed; the Parliamentary Sovereignty has come to an end; the new constitutional principle, Judicial Supremacy, is forming.Apart from the introduction, conclusion and the bibliography, the main body of the dissertation consists of three parts.The first part will canvass the historical formation of the Parliamentary Sovereignty, which is deemed as the most crucial principle in the British constitution. The parliament originates from the witan in the Anglo-Saxon period. After the Norman Conquest, the witan was reformed into Magnum Concilium by William I, which still exerted crucial influences on the King's decisions. It possessed not only the power of legislation, but also administration and judicature. After the 1215 Magna Carta, the power of the Magnum Concilium kept expanding. Meanwhile, the word Parliament became more popular when referring to Magnum Concilium. In 1258, The Provision of Oxford was signed, which confirmed Parliament as the supreme legislature in England. In the mid-14 th century, the House of Common and the House of Lords came to separation and this leads to the final formation of a stable and stationary parliamentary institution. At the end of the Tudor times, although monarchy reached its peak of all time, parliament still exerted substantial controls over the monarchs. In the Stuart times, the confrontation between the king and the parliament finally developed into a great civil war, which ended with the Glorious Revolution. In 1689, the Bill of Rights was signed and constitutional monarchy came to being. With the formation of the two-party system and the responsible-cabinet system, the monarch lost almost all the control of the political power. Walter Bagehot attributes the great success of the British constitutional system to the close binding of the administrative power and the legislative power. A.V. Dicey made further analyses of the unwritten constitution in Britain and held that the principle of Parliamentary Sovereignty is the primary principle of the British constitution. So far, the institutional and theoretical foundations of the Parliamentary Sovereignty have both been laid. Parliamentary Sovereignty thus has been widely recognized as the fundamental principle of the British unwritten constitution.The second part of the dissertation analyzes the formation of the tradition of the Rule of Law. The base of the Rule of Law is the common law. After the Norman Conquest, William I made various reforms on the Anglo-Saxon customary law. Henry I reinforced the power of the central government by expanding the jurisdiction of the pleas of the crown. Henry II founded the institution of judicial writ to widen the jurisdiction of the crown's courts in a further way. Meanwhile, the jury rules he implemented also has great influences on the common law. With the influences of various factors, the customary law,the statutory law and the case law converges into one: the common law. In the later stage, due to the inflexibility of the common law, the equity law emerges. The judicial reform in the late-19 th century ended the separation between those two. So far, the rule of law, a systematic and modern order, finally comes to formation. The common law, the equity law and the statutory law together consists the source of British law.The third part of the dissertation will canvass the constitutional theories of Dicey and the reconstruction of the legislature-judicature relationship in the constitutional system. After analyzing the principle of ‘parliamentary sovereignty' and ‘ rule of law', the conclusion that the essential contradiction between those two is inevitable. The balance those two reaches in reality is in the political sense, not in the legal sense. At a suitable time, the confrontation will emerge. After the mid-20 th century, the development of the administrative law, the impact of the E.U. laws, and the constitutional reforms all changes the legislature-judicature relationship. The effects caused by the expansion of the administrative catalyzed the contradiction between the parliament and the courts. The development of the administrative law, especially the establishment of several legal principles, is exactly the reaction to expansion of the powers possessed by the other two branches by the court. Joining the E.U. also exert great impacts on the parliamentary sovereignty: the court first get the power of judicial review in the institutional sense. The parliamentary sovereignty was torn apart. The enactment of The Human Rights Act and The Constitutional Reform Act formally announces the end of the parliamentary sovereignty. A systematic and independent institution of judicial review has been founded. In the new British constitutional system, the courts will play a more important role.In the last part of the dissertation, we will assess the role the courts would play in the new constitutional system and try to draw the inclusion of this dissertation: the power reconstruction in the British constitutional system has been completed; the Parliamentary Sovereignty has come to an end; the new constitutional principle, Judicial Supremacy,is forming.