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Dicey, Albert Venn

Dicey, Albert Venn

WORKS BY DICEY

SUPPLEMENTARY BIBLIOGRAPHY

Albert Venn Dicey (1835–1922), British constitutional lawyer and political theorist, was given his middle name in honor of John Venn, leader of the Clapham evangelists. On his mother’s side he was related both to the Venns and to the Stephens— Sir Leslie Stephen, philosopher, literary critic, and author of The English Utilitarians, and Sir James Fitzjames Stephen, a judge and the author of a celebrated history of English criminal law. Dicey was educated at Balliol College, Oxford, where one of his friends and contemporaries was James (later Viscount) Bryce, author of The American Commonwealth. Later Dicey became a fellow of Trinity and in 1882 was elected to the Vinerian professorship of English law at All Souls College, Oxford, the chair first occupied by Sir William Blackstone. Dicey’s two major works were his Introduction to the Study of the Law of the Constitution (1885) and Lectures on the Relation Between Law and Opinion in England, During the Nineteenth Century (1905). Both books are masterpieces of compression, and the Law of the Constitution still commands attention for its exposition of three major principles of the British system of government. These principles, as Dicey saw them, were (1) the close relationship between formal legal rules and informal conventions of constitutional behavior, (2) the legislative supremacy of Parliament, and (3) the rule of law.

Each of these principles has provoked criticism and debate in the twentieth century. Thus, Dicey insisted that conventions (for example, that governments resign if defeated on an issue of confidence in the House of Commons) were obeyed because of the existence of an ultimate legal sanction; a government that defied the convention about resignation, he argued, would find that the Commons would refuse to appropriate taxes or pass the Army Act, and administration could not thereafter be carried on legally. The explanation is not convincing. It does not tell us why conventions are obeyed when governments have solid majorities in the House of Commons; or why the majority respects the rights of the opposition (and pays its leader a salary); or why the Queen assents automatically to legislation; or why the legal powers of the crown and of Parliament are not exercised over territories to which only de facto independence has been given.

About the “sovereignty of Parliament” Dicey had much to say. It meant, he pointed out, the legal supremacy, or absolutism, of the “queen-in-Parliament.” In the eyes of the English lawyer and the English courts, the queen-in-Parliament is capable of making or unmaking any law, and no body or person or court can set aside this sovereign and omnicompetent will. Fundamental laws and judicial review are unknown to the law of England. The only legal impossibility is that of binding or restricting the powers of future Parliaments; for what one Parliament can do, another can undo.

The inconvenient practical implications of this common-law doctrine become evident when proposals are made, as they have been in Canada and other Commonwealth countries, to insert into the legal system a body of enforceable legal rights. If each successive English Parliament is sovereign in Dicey’s sense, such proposals cannot in legal principle be carried out. As a matter of political practice, however, Britain’s “sovereign” Parliament did bind itself irrevocably, and its successors as well, when in 1931 (and since then with increasing frequency) it relinquished the power to legislate for formerly dependent territories. And the United States is a monument to the futility of the English principle of legislative omnipotence, whether exercised by George HI’s Parliament or any other.

From the jurisprudential point of view, there have developed in recent times some differences on a problem that Dicey did not foresee, namely, whether Parliament is prohibited by the sovereignty principle from altering the legislative process in such a way that it prevents future Parliaments from repealing or amending, by simple majority vote, laws deemed to be of constitutional importance. There is disagreement about what the probable attitude of the courts would be if Parliament were to attempt to bind itself or its successors procedurally by requiring a special majority for the repeal of certain “entrenched” laws. This question is of great potential importance in new constitutional systems deriving from the British parliamentary model, though it remains a theoretical issue in the United Kingdom.

Dicey saw his third principle, the rule of law, as one that precludes not only arbitrary acts but even the existence of any wide discretion on the part of government officials. The rule of law makes possible the single jurisdiction, admired by Dicey, in which both citizens and state servants are subject to the same set of courts. He preferred the rule of law (thus defined) to the Continental system, in which administrative courts for the adjudication of disputes between the citizen and the administration exist alongside of the ordinary courts. Under the common-law principle, he believed, the state and the individual are treated as equals.

Critics have suggested that Dicey’s view is politically and administratively conservative and that it underrates the need for administrative discretion at the same time that it disregards substantial inequalities that may arise between citizens and officials as a result of executive privileges. A system of droit administratif may, by contrast, overcome these deficiencies. Dicey was not, however, in his later writing entirely insensitive either to the merits of the Continental system of control or to the need for discretionary powers on the part of government departments (Dicey 1915; also, Lawson 1959). Furthermore, Dicey’s strictures on official arbitrariness and discretion in matters of civil, as distinct from economic, liberties and in regard to the powers of policemen, if not those of civil servants, are today widely accepted. Indeed, Dicey’s views on free speech and the right of public assembly sound very modern, in contrast to his statements on economic welfare and state intervention. Since similar comments could be made about other contemporaries of Dicey’s, notably John Stuart Mill, it would be worth investigating why the economic principles of Victorian England should have proved so ephemeral and the political ones so durable.

Dicey’s social and economic views were those of a Whig and a free trader. On the Irish question he was a Unionist and supported his opinion with a vigorous tract, England’s Case Against Home Rule (1886). Although his Law and Opinion is primarily historical and descriptive, his dislike of collectivist legislation can be divined in it without difficulty. In dealing with the relation between legislation and English thought and opinion, he refers to “opinion” primarily in the sense of organized juristic, political, and economic theory rather than in the sense of “public opinion.” In linking legal development to intellectual movements, he saw a period of “Old Toryism” linked to Blackstonian optimism, followed by a period of Benthamite reform linked with the utilitarian philosophy, and finally a period of collectivism, which he thought reflected “a sentiment rather than a doctrine.”

Collectivism, he believed, owes a direct debt to Benthamism, which by providing precedents for centralized governmental intervention of a limited kind, had forged the instruments for more extensive collectivist measures. The first form of intervention he styled “negative,” the latter “positive.” The contrast was an unclear one, since any “positive” state purpose can be reformulated in terms of some social or economic impediment to freedom of access (to opportunity or happiness), which it is necessary to remove by collective restrictions. In 1860, Dicey thought, there was a widespread belief in Mill’s “simple principle” of individual liberty. But by 1914 there was collective provision for old age pensions, national health insurance, and school meals. Dicey doubted whether these measures could be justified on the principles set out in the essay On Liberty. He was surprised that the recipients of pensions from the state were allowed to continue to vote.

One interesting question raised in Law and Opinion is why English society has absorbed major legislative changes without resistance or obstruction from those whose interests are adversely affected. (The same question was posed by many after World War ii.) One of the answers suggested by Dicey is the misleading English belief that legislation changes little and in the end leaves most things in society much as they were. Dicey himself sometimes seemed to accept this view, which may explain his faith in social change through an enlightened public opinion.

Geoffrey Marshall

[For discussion of the history and subsequent development of Dicey’s ideas, seeAdministrative law; Constitutions and constitutionalism; Judicial process, article onjudicial review; Legal systems; Legislation; Parliamentary government.]

WORKS BY DICEY

(1885) 1961 Introduction to the Study of the Law of the Constitution. 10th ed. With an Introduction by E. C. S. Wade. London: Macmillan; New York: St. Martins.

1886 England’s Case Against Home Rule. London: Murray. (1905) 1962 Lectures on the Relation Between Law and Public Opinion in England, During the Nineteenth Century. 2d ed. With a preface by E. C. S. Wade. London: Macmillan. → A paperback edition was published in 1962 by Macmillan.

1915 The Development of Administrative Law in England. Law Quarterly Review 31:148–153.

1925 Memorials of Albert Venn Dicey: Being Chiefly Letters and Diaries. Edited by Robert S. Rait. London: Macmillan.

SUPPLEMENTARY BIBLIOGRAPHY

Hanbury, Harold G. 1958 The Vinerian Chair and Legal Education. Oxford: Blackwell. → See especially pages 131–163, on “A Prophet of the Constitution.”

Hart, Herbert L. A. 1961 The Concept of Law. Ox-ford: Clarendon. → See especially pages 49–76, on “Sovereign and Subject”; and pages 97–120, on “The Foundations of a Legal System.”

Heuston, Robert F. (1961) 1964 Essays in Constitutional Law. 2d ed. London: Stevens. → See especially pages 1–29, on “Sovereignty.”

Jennings, William I. (1933) 1959 The Law and the Constitution. 5th ed. Univ. of London Press. → See especially Appendix II on “Dicey’s Theory of the Rule of Law.”

Jennings, William I. 1935 In Praise of Dicey: 1885–1935. Public Administration 13:123.

Lawson, Frederick H. 1959 Dicey Revisited. Political Studies 7:109–126; 207–221.

Marsh, Norman S. 1961. The Rule of Law as a Supra-national Concept. Pages 223–264 in Anthony G. Guest (editor), Oxford Essays in Jurisprudence: A Collaborative Work. Oxford Univ. Press.

Marshall, Geoffrey 1957 Parliamentary Sovereignty and the Commonwealth. Oxford: Clarendon.

Rait, Robert S. 1937 Albert Venn Dicey. Pages 259–261 in Dictionary of National Biography, 1922–1930. London: Oxford Univ. Press.

Wade, H. W. R. 1955 The Basis of Legal Sovereignty. Cambridge Law Journal [1955]: 172–197.

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