THE UNCERTAINTY IN THE RULE OF RECOGNITION AND THE DOCTRINE OF PARLIAMENTARY SOVEREIGNTY

The paper also analyses critically the arguments by considering the opinion of the other proponents of the rule. The argument that permeates the start of the opinion of the author is that he rejects what he calls the orthodox approach to the rule of recognition and parliamentary sovereignty. The proponents of this orthodox concept argue that parliamentary power has no limits. The author seeks to demystify this approach and argues from the start that parliamentary sovereignty does not mean that the parliament has all the powers which cannot be checked. This argument he rejects as a dogmatic one that needs to be disallowed as it does not follow the rule of recognition as conceived under legal positivism and by the proponent HLA Hart.

The author points that the rule of recognition meets all the demands and criteria accepted that there should be a normative attitude and regularity of behavior. He explains that wade’s position on the rule of recognition deviates from the most basic approach by Hart that a rule of recognition is a complex union of certain patterns of behaviours and attitudes. He criticizes Wade for what he calls a simplistic and empty view of the rule. 3He also opines that Goldsworthy does not give importance to the nature of social rules when he explains the rule. 4 According to Tucker the orthodox approach proponents mislead in their argument and points out that the normative component of the social rules does not force the people to comply with a given conduct but simply the conduct in question only serves as a guide to behavior.

Hart noted that the rule of recognition may be indeterminate to the extent of its behavior. The author proceeds to fault Dworkin’s position that social rules can never be indeterminate that he oversimplifies the existence of the conditions of social rules. Dworkin fails to consider that there is not only the behavioural component of social rules but also the attitudinal aspect of it. Not only the behaviours of the major part of a population affect the social rules but also the attitudes of the other people in the society. Attitude also varies and with this fact in mind therefore, there is a possible indeterminate nature of social rules and as a result the same applies to the rule of recognition.

The courts have had the opportunity to look into the constitutional theories and in this article there are a number of cases which are used by Tucker to put across the limitations of the doctrine of sovereignty and the indeterminacy of the rule of recognition in the United Kingdom. The Factortame cases provide an example of the deviation from the Westminster approach to the sovereignty of the parliament according to Tucker. 6 In this case the House of Lords decision went against the old belief that parliament is sovereign and has no limits to its powers. The case is an example according to Tucker of the ability of the parliament to bind its successors. The author uses the dicta of Lord Bridge to put across his approach that the 1972 parliament had bound its predecessors and this showed that parliamentary sovereignty does have limits.