Parliamentary Sovereignty

Betty Kemp

  • The Writings and Speeches of Edmund Burke. Vol. II: Party, Parliament and the American Crisis, 1766-1774 edited by Paul Langford
    Oxford, 508 pp, £40.00, April 1981, ISBN 0 19 822416 8
  • The Writings and Speeches of Edmund Burke. Vol. V: India: Madras and Bengal, 1774-1785 edited by P.J. Marshall
    Oxford, 667 pp, £55.00, July 1983, ISBN 0 19 822417 6
  • The Collected Works of Jeremy Bentham: Constitutional Code, Vol. I edited by F. Rosen and J.H. Burns
    Oxford, 612 pp, £48.00, April 1983, ISBN 0 19 822608 X
  • The Collected Works of Jeremy Bentham: Deontology, together with a Table of the Springs of Action and Article on Utilitarianism edited by Amnon Goldworth
    Oxford, 394 pp, £38.00, July 1983, ISBN 0 19 822609 8
  • The Collected Works of Jeremy Bentham: Chrestomathia edited by M.J. Smith and W.H. Burston
    Oxford, 451 pp, £40.00, November 1983, ISBN 0 19 822610 1
  • Bentham and Bureaucracy by L.J. Hume
    Cambridge, 320 pp, £22.50, September 1981, ISBN 0 521 23542 1
  • Jeremy Bentham and Representative Democracy: A Study of the Constitutional Code by Frederick Rosen
    Oxford, 255 pp, £19.50, May 1983, ISBN 0 19 822656 X
  • Bentham by Ross Harrison
    Routledge, 286 pp, £14.95, September 1983, ISBN 0 7100 9526 0

The publication of Bentham’s Collected Works is likely to produce more new or revised views than the publication of Burke’s Writings and Speeches: indeed, it has already done so. The Bentham project will also take longer, for the establishment of the text is a herculean task. Bentham left a vast archive of notes and of drafts and redrafts of works planned but not published. Some of what was published in his lifetime was published in French, by his friend Dumont, with little help from Bentham, and retranslated into English. After his death his disciple Bowring added to the confusion by publishing an edition of Bentham’s works which seems to aim at recording Bowring’s interpretation of Bentham’s thought rather than his own words. Burke left no problem like this. Most of what he wrote was written as a reaction to current events, and published at once, and past editors have treated it with respect. What is particularly valuable about the present undertaking is that Burke’s speeches – many printed for the first time – and his notes for speeches are brought together with the pamphlets he wrote and published at the same time.

It is easy enough to make a contrast between the Burkean and the Benthamite approach: between the appeal to history and the appeal to utility, between rhetoric and reason, romanticism and scepticism. But it is too easy. Agreement is not destroyed because the agreed position is reached by different roads. All their lives, Burke and Bentham agreed in detestation and denunciation, as pernicious nonsense, of doctrines of natural rights, original contracts, and the rights of man. Both were lifelong enemies of abstractions, fictions, and ‘non-entities’. Both were exponents of the concept of parliamentary sovereignty, and both later modified their views.

Hobbes had defined the sovereign as the law-making authority, unlimited and indivisible. Following Hobbes, but by no means acknowledging him, the 18th-century debate started from the premise that Parliament, the legislature, was the supreme body in the state. It had emerged victorious over its old rivals; its law was the supreme form of law and could override other forms; the king could not abrogate or make exemptions from it. Did this mean that Parliament was sovereign? Blackstone in the 1760s, Burke and Bentham in the 1770s, answered ‘yes’. Those who answered ‘no’ deserve more respect than either Burke or Bentham gave them. These dissentients from sovereignty did not dispute Parliament’s supremacy: what they rejected was the step from supremacy to sovereignty. Some of them denied that the step had been taken: there were certain things, they said, that Parliament not only ought not to but could not do. The radical Granville Sharp, who saw ‘too many advocates for the imaginary omnipotence, or unlimited power, of Parliament’, agreed with the Whig lawyer Camden that Parliament could not ‘subvert the constitution’. To Bentham this was nonsense. Others denied, not Parliament’s unlimited power, but its unlimited right: there were certain things that Parliament ought not to do – for example, infringe the constitution. In effect, they looked for a reliable way of preventing such infringement. This is not a foolish or eccentric quest. Indeed, both ‘could not’ and ‘ought not’ point to a very real constitutional problem, not at all confined to 18th-century Britain. An obvious solution, adopted by many makers of new constitutions, was to separate the constitution from the legislature. The dissentients believed that they were separate in England: whatever powers Parliament had, it had not the power, or the right, to tamper with the constitution.

One of the dissentients, Willoughby Bertie, Earl of Abingdon, put their case in 1777 in the form of protest against ‘Mr Burke’s Creed’ – ‘the unlimited right as well as the unlimited power’ of Parliament. Burke had stated it briefly in 1766, in his first reported speech in the Commons, and elaborated it in 1777, in his letter to the Sheriffs of Bristol. ‘I say,’ Abingdon retorted, ‘the right is fiduciary, the power limited. If Parliaments are not bound by the constitution, nor subject to the control of the People, where is the difference betwixt a free and an arbitrary country, – between the despotism of the King of France and the despotism of the Parliament of England? It is a solecism in politics, and an absurdity in terms, to say that in a limited Government there can be unlimited Power.’ In the 1770s these had little chance of being anything but minority views. For Abingdon wrote not only against a long drift towards acceptance of parliamentary sovereignty, but during the sharp quarrel about sovereignty in relation to British policy towards the American colonies. To most Whigs parliamentary sovereignty was not despotism. It was, after all, born of two great victories for liberty – the Glorious Revolution and the Act of Settlement – and it was not unitary sovereignty. The balances and mixture implicit in the tripartite structure of Parliament seemed a safeguard against tyranny, just as the structure itself seemed to disprove Hobbes’s contention that sovereignty was indivisible.

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