Constitutional Change and Wade's Ultimate Political Fact
University of Queensland Law Journal, Forthcoming
17 Pages Posted: 8 Jul 2016
Date Written: July 6, 2016
Abstract
This is a retrospective review of H.W.R. Wades classic article on parliamentary sovereignty in the United Kingdom, The Basis of Legal Sovereignty, published in 1955. I discuss the legal background against which the essay was written and particularly the South African case of Harris v. Minister of the Interior that was the centerpiece of Wade’s analysis. I survey Wade’s differences with Ivor Jennings, the leading figure among the then active academic defenders of Parliament’s power to impose “manner and form” limitations on future parliaments. I also compare Wade’s identification of an “ultimate political fact” supporting the legal system with Hans Kelsen’s Basic Norm and H.L.A. Hart’s Rule of Recognition. I try to show both the similarities and differences in these theoretical constructs. I go on to inquire how Wade’s understanding has played out in subsequent constitutional developments and, in particular, in the rapid constitutional changes of the present day. Finally, I attempt to show that Wade’s central insight, the ineluctably non-legal basis of law applies equally to the much more common case of legal systems which recognize a single and supreme constitutional text at the apex of the system’s legal hierarchy.
Keywords: Legal Theory, Constitutional Law, Comparative Law, Jurisprudence
JEL Classification: K10
Suggested Citation: Suggested Citation