Disposing of Dicey: From Legal Autonomy to Constitutional Discourse?

Publication Date01 May 2000
AuthorCarol Harlow
Date01 May 2000
Disposing of Dicey: from Legal
Autonomy to Constitutional Discourse?
Carol Harlow
1. Authorized Version: True or False?
The authorized version of the relationship of law and politics in England presents
us with two autonomous worlds where, to cite Barker, law is ‘neutrally detached
from the contests of political ideas and argument’, ‘legal ideas [are] invisible in the
elaboration of political argument’, and ‘the general assumptions of law have been
little considered in debates about the political character and goals of the nation’.1
Writing of the cusp of the nineteenth century, Barker is here discussing the failure
of the great legal historian, F.W. Maitland, to impress his views on the public con-
sciousness. Although passing mention is made of Maitland’s contemporary and
rival, A.V. Dicey, his influence is also downplayed as largely confined to the purely
legal sphere of ‘administrative law and of delegated legislation’.2
Barker’s assessment is certainly unfair to Dicey, whose views undeniably inserted
themselves into the national consciousness. Laski – a political scientist whose work
is infused with legal vocabulary and concepts3– wrote on Dicey’s death that: ‘Few
Oxford teachers since T.H. Green have exercised an influence so wide as he’.4
Dicey’s ideas supply the ‘background theory’ of the British constitution,5and still
influence political debate today. His views have shaped debates about the most
fundamental political goals of the nation, including all the issues (European Union,
devolution of government to Scotland and Wales and human rights), discussed in
later sections of this article. And Dicey was no mere lawyer. It has been said that,
‘despite his strong commitment to academic law, politics remained his secular
vocation’.6He was the author of a highly original treatise whose central thesis is
the relationship of law with politics and public opinion.7Perhaps this is the real
reason why Dicey, like Bagehot, succeeded where Maitland failed.
Yet Maitland’s gently evolutionary picture of the constitution was in some ways
more faithful than that of Dicey. The society portrayed in Maitland’s constitutional
writings8is one in which law and politics have always been deeply intertwined.9
For centuries, administrative and judicial systems met in the single person of the
justice of the peace. Knowledge of the law and system of government was con-
sidered part of every gentleman’s education. It was diffused in the shape of Black-
stone’s Commentaries, through which the precepts of the common law were carried
to the New World with the settlers who claimed its rights. Judges were (and
remain) generalists, who often describe themselves as representing the community
and public opinion.10 The common law originated in ‘custom and practice’ and was
seen to embody common sense; it is not coincidental that its central metaphor of
‘the reasonable man’ is also the common man ‘on the Clapham omnibus’. The jury
POLITICAL STUDIES: 2000 VOL 48, 356–369
© Political Studies Association, 2000.
Published by Blackwell Publishers, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA

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