Constitutional Change and Wade's Ultimate Political Fact

University of Queensland Law Journal, Forthcoming

17 Pages Posted: 8 Jul 2016

See all articles by Richard S. Kay

Richard S. Kay

University of Connecticut School of Law

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

Kay, Richard S, Constitutional Change and Wade's Ultimate Political Fact (July 6, 2016). University of Queensland Law Journal, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2805537

Richard S Kay (Contact Author)

University of Connecticut School of Law ( email )

65 Elizabeth Street
Hartford, CT 06105
United States
860-570-5262 (Phone)

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