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Osgoode Hall Law Journal

Authors

R. Elliot

Document Type

Article

Abstract

The issue of whether a legislative body in a democratic society can bind itself on matters relating to the procedures by which the legislation is to be enacted, amended or repealed has, to this point, tended to dissolve into the question of which of two contending formulations of the doctrine of parliamentary sovereignty one prefers, Dicey's traditional formulation or the "new view" by Jennings and others. The author argues that, regardless of how one formulates it, the doctrine of parliamentary sovereignty provides an unsound basis upon which to resolve this issue, and that an alternative basis is therefore needed. That alternative basis, he contends, flows from the recognition that the courts are the ultimate arbiters of what the law is in a given society, and that, in this context, the power to determine what the law is carries with it the power to determine to a significant degree how it is that the society will govern itself. For this reason, the courts must ensure that in making such determinations, they take their guidance from, and give expression to, the values of the legal and political culture of that society. These values will include, but will not be limited to, the values reflected in the doctrine of parliamentary sovereignty.

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