Dicey produced the nearest the UK has had to a constitution written down in one book. His ongoing influence is remarkable—and detrimentalby David Allen Green / November 12, 2019 / Leave a comment
In 2019, the study and practice of constitutional law of the United Kingdom is still dominated by one book first published in 1885. This was the Introduction to the Study of the Law of the Constitution by the Victorian and Edwardian jurist, Albert Venn Dicey.
Politicians and commentators, lawyers and constitutionalists, generally either follow the categories and theories of Dicey, often unknowingly, or define themselves against his famous text. Jacob Rees-Mogg even hailed Dicey in his badly received recent book on the Victorians and invokes him at any opportunity. Judges, meanwhile, expressly refer to Dicey and his book as the legal orthodoxy even when they are seeking to escape his shadow.
For what was in substance a mere collection of lectures, this influence is remarkable. The original book, and subsequent editions—issued into the 1950s, 30 years after Dicey’s death—is the nearest the UK has had to a constitution written down in one book. But its overall impact has been detrimental.
Dicey’s preoccupation with a legally omnipotent parliament meant the inherent powers of the executive and judiciary did not, until recently, receive adequate attention. And as well as averring that parliament was able to do whatever it wanted, Dicey objected to those exercising public power having any special “public law” obligations, thereby giving total licence to rule-makers to do as they wished, subject only to express parliamentary controls. His disregard for fundamental rights of subjects (let alone citizens) hindered the development of rights-based jurisprudence for over 100 years. His equation of the UK with England ignored the distinct legal position of Scotland and, as an ardent Unionist, he was never able to comprehend the possibility of Irish home rule. He did not even accept that women had the right to vote: this was because in his view, they were fundamentally different from men. And yet Dicey has still not been thrown off. His text remains the most important account of the sovereignty of parliament, and always will be—the definitive exposition of the orthodox position.
Dicey’s emphasis on parliament meant any legal limit on judicial and executive power, and on the rights of individuals, rested on parliament’s (actual or presumed) intentions. This long-delayed the wider understanding of a…