Political philosophers, dictum of Ulpian, force of law, moral principles, legislator, scope of constitutional powers, western legal thought, constitutions, bills of rights.
Political philosophers throughout history have been shocked by the dictum of Ulpian that "Because it pleases the prince, it has the force of law",2 and have asked whether there are not moral principles which a legislator may not contravene, whatever the scope of his constitutional powers. The philosophers' answers have been of crucial importance in the development of western legal thought and have influenced the content both of national constitutions and of national and international bills of rights. The reasoning, however, underlying those answers has usually been of an a priori character, based on the acceptance of theories of natural law which do not today attract universal acceptance. It is true that, if one probes beneath the surface of these theories, the ultimate appeal is not infrequently to the facts of everyday life. Could we not, however, proceed directly to the underlying question: "Are there practical constraints which every legislature should in its own interests recognise, even when no legal limitations appear to affect it?" This may be, strictly speaking, neither a legal nor a philosophical question, but it was touched upon by Dr. Horace E. Read in his Cases and other Materials on Legislation. It is of perennial interest to those concerned with legislation and is, I suspect, as old as legislation itself. It must have given pause to the intelligent tyrants of history, as it certainly did to those who, like Machiavelli, analysed their political powers and strategies.
Creative Commons License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.
A. E. Anton, “Legislation and its Limits” (1979) 5:2 DLJ 233.