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The sovereignty of positivism
Jurisprudence  (IF),  Pub Date : 2021-02-12, DOI: 10.1080/20403313.2021.1872255
Douglas E. Edlin

ABSTRACT

Jeffrey Goldsworthy recently claimed that parliamentary sovereignty itself expresses or endorses legal positivism. This claim inverts the relationship between law and legal theory, according to which legal theories are used to explain doctrinal, functional, institutional, or constitutional aspects of the law. Beyond claiming that positivism as a legal theory can helpfully explain sovereignty as a legal principle, Goldsworthy now argues that the legal doctrine of sovereignty is itself an articulation of positivism as a legal theory. This assertion, if correct, has significant implications for current understandings of the English constitution, constitutional theory, and legal theory. This essay argues that Goldsworthy’s conception of legal positivism cannot accurately describe the English conception of parliamentary sovereignty identified by the English rule of recognition.