Introduction to the Study of the Law of the Constitution. A. V. Dicey

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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 sovereignty of Parliament; the rule of law; and the dependence in the last resort of the conventions of the constitution on the law of the constitution. He states these principles with such force and clarity that they remain today the starting point for any contemporary discussion of constitutional rules and of limitations of governmental powers. While Dicey

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      is writing of Great Britain directly, because of their extraordinary similarity, he says much that is true of constitutional principles of the United States as well. In short, Dicey develops a conceptual structure that defines the political and legal constitution of democratic government as we know it.

      Finally, the book should be read with reference to conditions when he wrote. Dicey published the Law of the Constitution in 1885. As he carefully explains, the text of the book was essentially fixed with the seventh edition, which appeared in 1908. That edition contained revisions up to 1908 in accord with Dicey’s understanding of the changes that had taken place in the English constitution. The eighth edition, which is reprinted here, appeared in 1915 when Dicey was eighty years old. This reprints the text of 1908, but it contains an introduction of nearly one hundred pages in which Dicey recorded his thoughts on constitutional changes since 1908. The organization of this introduction, however, follows the organization of the book and may not be readily understood if the propositions and the arguments of the main text are not first read and absorbed. A further suggestion for the present-day reader before embarking on the introduction, but after reading the main body of the work, would be to read the Parliament Act of 1911, listed as Note XIII. Dicey seeks to show the actual, the true state and condition of English constitutional law, within the boundaries of his definition, in the period between 1885 and 1908. Were he writing in the 1980s, the book would be very different. This is the principal value of his 1915 introduction, for it shows Dicey’s understanding not only of actual changes in the law but of how those changes embody changes in fundamental constitutional principles.

      Some of Dicey’s detractors have called this introduction the work of a tired, cranky old man, disappointed by life. There is, however, much to be learned from the introduction. For instance, in 1915 Dicey appears cool to women’s suffrage, which was then one of the pressing issues of the day. But it must be understood that his chilliness represented a change. In the 1860s he was a great champion of the women’s movement, and he supported John Stuart Mill’s call for women’s suffrage. In the well-known Essays on Reform in 1867, Dicey contributed a piece entitled “The Balance of Classes” in which he

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      spoke against the arguments of the Conservatives and defended individual choice. Following his trip to the United States in 1870, he wrote:

      One of the reasons why there is less clamour for Women’s Rights [in the United States] is the existence of a far smaller number of women’s wrongs than with us, e.g., they have in many states the right to hold property when married, as their own, and have got the full legal protection for their earnings. . . . It is impossible not to conclude that the average education of women is, compared with that of men, higher than in Europe—hence a freer opening of careers. . . . In the United States women are as a matter of fact obtaining political privileges . . . generally reserved for men.

      Dicey was demonstrably a vigorous proponent of women’s suffrage. In any case, the political issue of women’s suffrage is moot. But it is not beside the point to read a distinguished constitutional lawyer’s reflections on the effects of social and political movements on constitutional principles and on individual rights under the constitution. Dicey says that “constitutional law, as the term is used in England, appears to include all rules which directly or indirectly affect the distribution or the exercise of the sovereign power of the state.” These “rules” fall into two broad categories. The first category of rules are laws, strictly understood. These laws are written and unwritten, statutory and customary, which are usually called the Common Law. These laws are known and recognized to be laws, because—this is the important determining factor—they are enforced by the courts. The other broad category of rules are what Dicey calls “conventions of the constitution.” The rules of this second category are not in strictness laws, they are not enforced or enforceable by the courts; but they are the usual and customary practice of politicians and civil servants, and represent what Dicey calls “political” or “constitutional morality.” The law of the constitution, then, is of two pieces: the relatively unambiguous laws, derived from judicial decisions and Parliamentary enactments, precisely expressed and recognized by the courts and the relatively ambiguous, largely implicit, conventions, which are part of political practice and morality and enter into public opinion. Dicey aims to examine the relationship between statutory law and public morality, and thereby to elucidate the relations between

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      continuity and change in law and politics. The sovereign power of the state consists of a “legal sovereign” and of a “political sovereign.”

      In the Law of the Constitution Dicey shows how, from a strictly legal point of view, public morality must yield to law. In a later work Lectures on Law and Public Opinion in England during the Nineteenth Century, which was published in 1905, Dicey shows how, from other than a strictly legal point of view, public morality acts as a final sanction on law. No other modern writer has shown so penetratingly, as Dicey does in these two books, the relationships between law and the mores maiorum—the prevailing beliefs—in democratic regimes.

      Dicey also tells us something of the importance of political morality. By deprecating the growing estrangement between law and morality through the constant addition to the statute books and the criminal law of acts which the government considers anti-social but the governed do not consider immoral Dicey offers us his most important lesson: the persistence of this state of affairs can only mean “a decline of reverence for the rule of law.”

      This phrase, “the rule of law,” Dicey formulated into a principle of the British constitution. He did not create this phrase, but he brought it into currency, СКАЧАТЬ