“Reflecting on the problem of evil, JL Mackie concluded that full divine omnipotence was impossible. We can distinguish first order omnipotence – unlimited power to act; and second order omnipotence – unlimited power to determine the power to act. No being in time could have both in full; if you had the second, your first order omnipotence was limited by the potentiality of constraints that the second order power could impose. As Mackie noted, a parallel paradox applies to parliamentary sovereignty. Following HLA Hart, Parliament’s sovereignty must be continuing or self-embracing; if continuing, Parliament does not have the second order power to constrain its own sovereignty; if self-embracing, and Parliament can pass statutes that constrain itself, then the continuity of its sovereignty is contingent, and so limited. Analogous problems arise for any general competence which in principle could be unconstrained in a dimension which could affect itself. Thus it has been necessary to decide between continuing or self-embracing analyses in a range of endeavours …”
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Thomas Raphael QC, ‘Tying your own hands: the Supreme Court’s decision in Rock Advertising’ (2022) 138 Law Quarterly Review 299-326 (April issue).
First posted 2022-03-02 08:00:14
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