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Report No. 60

10.2. Statutes in derogation of sovereignty.-

One of the most interesting problems which have arisen in Constitutional Law concerns the effect of statutes in derogation of sovereignty. How far does a statute bind the Government? For some time, a view prevailed that the sovereign remains unaffected by the general words or language of a statute.1 The rule had, perhaps, its origin in the English Common law immunity of the Crown; this immunity had first attached to the personal character of the King as the sovereign, and later extended to other sources of the law-making and law-enforcing power.2 The conflicting theories of sovereignty affecting this problem need not detain us. What needs to be noted is that the doctrine that the State is not bound by statute except in certain cases is, speaking historically, associated with the institution of monarchy.

1. See para. 10.7, infra.

2. Borchard Government responsibility in Tort, (1926) 36 Yale Law Journal 1, 17.

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