Constitutional Law Essay Help Watch

southp4w
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Hi guys, I'm attempting my first constitutional law essay and I'm kinda confused.

How does democratic legitimacy enable Parliamentary sovereignty?
Besides the fact that Parliament is elected and all that stuff
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southp4w
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anyone?
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Katie_p
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Is that the actual question or paraphrasing?
Because it doesn't really make sense to me.
Democratic legitimacy doesn't enable Parliamentary sovereignty, it just legitimises it! The "unwritten"/non-existent British Constitution enables Parliamentary sovereignty.
I guess you could look at other jurisdictions to see who/what is sovereign and whether this is democratically legitimised. The German Grundgesetz (constitution) states in the Preamble that (paraphrasing because I don't know the translation) "all State action comes from the People"....essentially, the People/citizens are sovereign in the German legal system, which means the legislative is sovereign as their elected representatives.
It's an obvious version of our system.
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southp4w
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(Original post by Katie_p)
Is that the actual question or paraphrasing?
Because it doesn't really make sense to me.
Democratic legitimacy doesn't enable Parliamentary sovereignty, it just legitimises it! The "unwritten"/non-existent British Constitution enables Parliamentary sovereignty.
I guess you could look at other jurisdictions to see who/what is sovereign and whether this is democratically legitimised. The German Grundgesetz (constitution) states in the Preamble that (paraphrasing because I don't know the translation) "all State action comes from the People"....essentially, the People/citizens are sovereign in the German legal system, which means the legislative is sovereign as their elected representatives.
It's an obvious version of our system.
I paraphrased the question.

The question is about how the courts are submissive to the Parliament because of democratic legitimacy. So I'm trying to find out more about how does democratic legitimacy bestow supreme powers to Parliament?

I hope I am making sense :/
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Katie_p
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(Original post by southp4w)
I paraphrased the question.

The question is about how the courts are submissive to the Parliament because of democratic legitimacy. So I'm trying to find out more about how does democratic legitimacy bestow supreme powers to Parliament?

I hope I am making sense :/
That questions makes a lot more sense!
So Courts = judges who aren't elected
Parliament = Government officials who are elected
therefore Parliament > Courts
You should probably discuss judicial activism a bit, the difference between judge-made and (i forget the term) government-made law.
Are the Courts actually submissive to Parliament? To what extent?
Limits on sovereignty of Parliament - American constitution means judges can strike down leislation that isn't compatible with Constitution, we don't have anything like this. Democratic legitimacy for Parliament, yes, but should judges have more power and should there be a higher power to limit Parliamentary sovereignty?
And the EU.

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cliffg
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(Original post by southp4w)
Hi guys, I'm attempting my first constitutional law essay and I'm kinda confused.

How does democratic legitimacy enable Parliamentary sovereignty?
Besides the fact that Parliament is elected and all that stuff
Consider where the doctrine of Parliamentary sovereignty comes from. Many writers will suggest it was granted to parliament by the courts. If they granted it, they can take it away. See R(Jackson) v Attorney General - cheat and just Google for a wiki comment. (You will of course cite it after getting up a Westlaw or Lexis version.)

You might also consider commenting on the difference between "sovereignty" and "infallibility". I think some Parliamentarians recently have confused the latter with the former.

Consider what "democratic legitimacy" Parliament really has. The upper House is unelected. The lower House is elected on a first past the post system - which in a three party State frequently means that we are ruled by a party which has gained a minority share of the public vote. (See Lord Hailsham's comments on elective dictatorship of PM.)

Consider limits to perceived Parliamentary sovereignty - the effect of the Human Rights Act, the European Communities Act and devolution of powers to Scotland, Wales and Northern Ireland.

Finally, you might want to consider which body is really sovereign in reality - the courts or Parliament, in relation to judicial review. If you haven't studied JR yet you could search for some very good recent blogs by academics regarding Grayling's attempts to limit judicial review and thus limit the power of the citizen against the State. Perhaps an attempt to reinforce the sovereignty of Parliament but surely at the expense of democracy.
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southp4w
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Thank you Katie (:

(Original post by cliffg)
Consider what "democratic legitimacy" Parliament really has. The upper House is unelected. The lower House is elected on a first past the post system - which in a three party State frequently means that we are ruled by a party which has gained a minority share of the public vote. (See Lord Hailsham's comments on elective dictatorship of PM.)
thank you for your response, Cliff. Do you have any idea where I can find Lord Hailsham's comments? Like in a journal article or something like that?
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cliffg
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See citation [1] in this link,although I wouldn't rely on it.

http://en.wikipedia.org/wiki/Elective_dictatorship

I can't access the article - the BBC lecture is no longer available on their i-player. I would just run a Westlaw or Lexis search and look for the citation or the actual paper.

Also possibly useful to you:

http://www.iaya-students.narod.ru/fi...torship.doc‎

(Sorry checked last link and seems bust)
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