Page 909 - Week 03 - Thursday, 14 March 1991
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In order to perform this bit of magic the various academics created their own version of English legal theory which they supported with their own brand of legal authority. This alleged legal authority did not, and does not, support the position taken by the exponents of the "Sovereign Parliament" theory. It was this legal/political theory that was being taught to the legal practitioners of the latter part of the 19th Century.
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It is submitted, that the majority influence of this new theory was to undermine all the sacrifices of numerous generations of the English people. It reduced the great English heritage of freedom, back to the age before law to the age of power. Without this theory, the South African government could not have depreciated the English system of justice to its present condition in South Africa. It has placed the Commonwealth countries on a road which will inevitably give it an equality of despotism with the governments of China, Chile, USSR and other legal positivist countries.
It is submitted, that legal positivism is not objectionable per se. Many aspects of legal positivism, such as the irrebuttable presumption that the registered owners of vehicles are deemed responsible for parking tickets, are completely reasonable. Since such matters are acceptable because they are reasonable it should become apparent that acceptable aspects of legal positivism are under the natural law of reason. That is, legal positivism is subject to the natural law.
Sir Edward Coke was Chief Justice to the King's Bench, Chief Justice to the Common Pleas, and later leader of the Opposition in Parliament.
Dicey cites ... Coke's comments at page 36 in his "Fourth Institute" as supporting the Sovereign Parliament theory. However, the "Fourth Institute" was concerned with the jurisdictions of Courts and the chapter quoted from was entitled "The High Court of Parliament". Coke obviously was referring to the power of Parliament in the form of adjudication, not legislation.
What Dicey omitted to put in his student text was Coke's many other comments. Such as Coke's dictum in Dr. Bohnam's Case ... "it appears in our books, that in many cases, the common law will control Acts of Parliament, and sometimes adjudge them to
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