Introduction to the Study of the Law of the Constitution. A. V. Dicey
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According to Lord Bryce the discussions in this “quite remarkable” body were conducted openly and freely, devoid of dogmatism, because everyone “assumed individualism as obviously and absolutely right.”
Dicey went down from Oxford in 1861 to read law in London. He left with an excellent degree, a fellowship at Trinity College, which he relinquished upon his marriage in 1872, a circle of friends, who remained close until death, and his first book, The Privy Council, winner of the Arnold Prize Essay in 1860, ready for publication. He returned to Oxford in 1883, when he began his intellectually productive period. The intervening years were spent in legal practice, having been called to the bar in 1863 as a member of the Inner Temple. His accomplishments led in 1876 to his appointment as junior counsel to the Commissioners of the Inland Revenue. Although he did handle some important briefs, the political career for which he hoped did not materialize. It also became clear before long that because of his physical weakness he could not realistically expect elevation to the bench. During this time Dicey married, began his scholarly writing, and travelled, with some frequency outside of England.
It was from these travels that he gained the knowledge to lay the foundation for the pioneering character of the Law of the Constitution in the field of comparative constitutional law. Dicey’s extraordinarily accurate knowledge of continental constitutions was initiated in the course of his travels to Belgium, France, Switzerland, and Germany; the regimes of these countries excited him as examples of constitutional governments different from but similar to Britain. Indeed, Dicey’s genius as a constitutional lawyer came from his ability to draw sharp distinctions between very similar but fundamentally different constitutional arrangements. Much of his understanding for these subtle but profound differences came from first-hand observations.
In 1870 he made a voyage to America with Bryce who used the opportunity to gather much of the material for The American Commonwealth, which he published in 1888. These travellers seemed bent on learning everything possible about the United States, and through their Oxford friends and family contacts met an impressive number of
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prominent Americans. Dicey made a full record of these experiences in his diary.
Above all, the travellers wanted to understand the American constitution; Dicey’s diary abounds in jottings regarding the legal profession, the administration of justice, politics, and constitutional arrangements in the United States. Dicey attended the Democratic Convention at Rochester in 1870 and was able to see at close range the machine politics of which he was not an unqualified admirer. He wrote: “America is in theory the purest of Democracies, yet there are perhaps very few countries where there is less scope for independent political action, at least by individuals.” Systematic party discipline, he thought, “violates the essential principles of Democracy, for it very much limits the control over their Government exercised by the people, and it sacrifices the public service to purely individual interests. The evil is very apparent in England and will become more so.” Many of the observations about American politics and institutions in his diary showed his strong capacity for comparative analysis. In the opinion of his friend and former pupil, Robert Rait, the American tour very decidedly marked Dicey’s later work in comparative and constitutional law. It gave him a basis for comparison, and it influenced his subsequent attitude to American constitutional problems. On at least two occasions Dicey wrote to Bryce that the Law of the Constitution would not have been written but for this journey.
Dicey admired the United States greatly. It proved popular government possible; it drew on a tradition of voluntary action, and it seemed to confirm his liberal principles. The United States and France were the examples he drew most frequently on to contrast by illustration with the principles of the British constitution. America expanded his imagination about the structure and formation of comparable but different legal institutions.
The academic study of modern society through the study of politics and history was one of the achievements of the movement to reform university education. Dicey admired this reform when he was still an undergraduate; when he became Vinerian professor in 1882 he brought the spirit of those reformers to bear on the field of his responsibilities.
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The Vinerian Professorship had been established in Oxford in 1758 on a bequest of Charles Viner. Its first incumbent was Sir William Blackstone, author of the Commentaries on the Laws of England. While law, principally canon law, had most certainly been studied for a long time at Oxford—the Regius Professorship had been established by Henry VIII—the Vinerian Professorship was the first academic post created specifically for the study of English law. After the auspicious beginning in Blackstone’s lectures, the subsequent Vinerian professors were uniformly undistinguished. They paid little attention to teaching; some had written unremarkable commentaries; most seemed uninterested in the post.
Not only did Dicey’s considerable practice at the bar and his position as counsel to the Commissioners of the Inland Revenue help his election to the Vinerian Professorship, but also his writings, The Privy Council (1861), his Treatise on the Rules for the Selection of the Parties to an Action (1870), and The Law of Domicil as a Branch of the Law of England (1879) had given him a considerable reputation as a legal writer. In 1896, he published his Digest of the Law of England with Reference to the Conflict of Laws, which was an expansion of The Law of Domicil and is the most celebrated of his strictly legal works. The Conflict of Laws, which has been periodically brought up to date, remains today a standard work. In the words of his Vinerian successor, William Geldart, this work “not only reduced to order one of the most intricate and technical branches of law . . . but exerted a potent influence on its development.”
Dicey held the Vinerian Professorship for twenty-seven years. His term of service is often referred to as the second founding. By the time of his resignation in 1909 Dicey had transformed the Vinerian chair into one of the most important posts in the world for the teaching of law. In a tribute, Sir William Holdsworth, the ninth Vinerian Professor and the author of The History of English Law in sixteen volumes, wrote:
Dicey will hold in the history of the legal literature of the nineteenth century a place not unlike that which Blackstone holds in the history of the legal literature of the eighteenth century. Both have written books which have been accepted by their contemporaries as books of authority; and . . . Dicey’s
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work has contributed largely to the fulfilment of Blackstone’s prophecy of the effects of a scientific study of English law at a university both upon the law, and upon the teaching of law. . . . In his works on the Law of the Constitution and Law and Opinion in England he has done for English public law and for the legal history of the nineteenth century all, and in some respects more than all, that Blackstone did for the public law and the legal history of the eighteenth century.
The first of the books to which Holdsworth referred, the Introduction to the Study of the Law of the Constitution, was originally published in 1885, two years after Dicey moved back to Oxford. It was a revision of his first Oxford lectures and based on many years of study and reflection. In it, he conceived of the legal and political elements of constitutional law in a way that, after the better part of a century, as Holdsworth said, still remains our starting point.
II
The contemporary American reader of the Law of the Constitution initially must understand three points. First, Great Britain, unlike the United States, does not possess a written document specifying the constitution of political power. In a narrow sense knowledge of constitutional law in the United States may be had through familiarity with the text of the Constitution and through the current state of interpretation of the written Constitution as revealed through Supreme Court decisions. This approach to knowledge of English constitutional law, due to the absence of a single written document, is impossible.
The second point proceeds from this observation. That is, how does one know, actually and conceptually, the English constitution and English constitutional law? In the Law of the Constitution Dicey answers these questions by stipulating three descriptive principles of law around which he organizes the book: the legislative