Moral Philosophy: Ethics, Deontology and Natural LawRickaby, Joseph
Philosophy
Moral Philosophy: Ethics, Deontology and Natural Law
Rickaby, Joseph
Ethics
8. This seems at variance with the theory of some constitutions,
according to which there are certain so-called _fundamental laws_,
which the legislature cannot call in question, nor deal with in any
way, but must take them in all its deliberations for positions
established and uncontrovertible. The British Constitution recognizes
no fundamental laws. There is no reform that may not legally be
broached in Parliament and enacted there. Parliament is said to be
"omnipotent," "able to do everything, except to make a man a woman."
But in many legislatures it is not so. At Athens of old there were
certain measures which no one could introduce for discussion in the
Sovereign Assembly without rendering himself liable to a prosecution
[Greek: graphae paranomon]. And there have been many monarchs termed
absolute, who yet were bound by their coronation-oath, or by some
other agreement with their people, to preserve inviolate certain
institutions and to maintain certain laws. It may be contended that
such a government as we have in England, which is theoretically
competent to pass any law within the limits of the natural law, has a
greater range of power than a government whose operation is limited by
a barrier of fundamental positive law. But this contention vanishes
when we observe that there must remain in the State, which has
fundamental laws, a power somewhere to reverse them. They can be
reversed at least by the consent of the whole people. Thus at Athens
the [Greek: graphae paranomon] could be suspended by a vote of the
Assembly. A people can release their monarch from his coronation-oath
in such portions of it as are not binding absolutely by divine law.
Where _fundamental law_ obtains, a portion of the civil power becomes
_latent_, and only a diminished remainder is left _free_ in the hands
of the person or persons who are there said to rule. Such person or
persons are not the _adequate ruler_ of the State, as they have not
the full power, but the people, with whom rests the latent authority
to cancel certain laws, are to that extent partakers in the
sovereignty. Where there is agreement of the whole people, great and
small, no part of the power remains _latent_, but all is set _free_.
With us, it may be observed, the omnipotence of parliament has become
a mere lawyer's theory. On every great issue, other than that on which
the sitting parliament has been elected, it is the practice of
ministers to "go to the country" by a new General Election. Thus only
a certain measure of available authority is _free_ at the disposal of
parliament: the rest remaining _latent_ in the general body of the
electorate. Such is our constitution in practice.
Public-domain text, read in full here on John Shaqi.
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