18 K.L.J. 1 (2007)

handle is hein.journals/kingsclj18 and id is 1 raw text is: (2007) 18 KLJ 1-22

The Paradox of Sovereignty: Jackson and the
Hunt for a New Rule of Recognition?
James Allan*
In discussing free will, the problem of evil and arguments for and against the existence of
a theistic God, the noted Oxford philosopher JL Mackie drew attention to what he called
'the Paradox of Sovereignty1 He then suggested a parallel between what a mooted
omnipotent being could and could not do and what a sovereign legislature or parliament
could and could not do. Mackie wrote:2
Before suggesting a solution of this paradox, I would point out that there is a parallel Paradox
of Sovereignty. Can a legal sovereign make a law restricting its own future legislative power? For
example, could the British parliament make a law forbidding any future parliament to socialize
banking, and also forbidding the future repeal of this law itself? Or could the British parliament,
which was legally sovereign in Australia in, say, 1899, pass a valid law, or series of laws, which
made it no longer sovereign in 1933? Again, neither the affirmative nor the negative answer is
really satisfactory. If we were to answer 'Yes, we should be admitting the validity of a law which,
if it were actually made, would mean that parliament was no longer sovereign. If we were to
answer'No', we should be admitting that there is a law, not logically absurd, which parliament
cannot validly make, that is, that parliament is not now a legal sovereign. This paradox can be
solved in the following way. We should distinguish between first order laws, that is laws
governing the actions of individuals and bodies other than the legislature, and second order
laws, that is laws about laws, laws governing the actions of the legislature itself. Correspondingly,
we should distinguish two orders of sovereignty, first order sovereignty (sovereignty (1)) which
is unlimited authority to make first order laws, and second order sovereignty (sovereignty (2))
which is unlimited authority to make second order laws. If we say that parliament is sovereign
we might mean that any parliament at any time has sovereignty (1), or we might mean that
parliament has both sovereignty (1) and sovereignty (2) at present, but we cannot without
contradiction mean both that the present parliament has sovereignty (2) and that every
* Garrick Professor of Law, University of Queensland.
1  JL Macke, 'Evil and Omnipotence' (1955) 64 Mind 200,211. The argument presented there is reconsidered,
in some respects, in Mackie's posthumously published masterpiece The Miracle of Theism: Arguments For
and Against the Existence of God (OUP, Oxford 1982) ch 9, section (c) on, in particular p 160, but the
reconsideration affects the mooted sovereignty of a benevolent, theistic God, not of a sovereign parliament.
For the latter, his analysis stands. See the main text to n 2.
2 Ibid 211-12.

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