I have recently come across a great paper by Mark D. Walters, “Dicey on Writing the Law of the Constitution”, (2012) 32 OJLS 21. (UPDATE: The original link is no longer working, alas, and the paper is no longer freely accessible.) It’s not brand new (it was published last year), but as prof. Walters, unfortunately, doesn’t post his work on SSRN, it might have escaped the attention of fellow constitutional law nerds and Rule of Law enthusiasts, as it escaped mine. The article tries to provide put A.V. Dicey’s work, especially his classic Introduction to the Study of the Law of the Constitution, in the intellectual context of its author’s “real intellectual life,” a glimpse of which prof. Walters got by studying Dicey’s papers, letters, and draft manuscripts.
Dicey’s work has been touted as the epitome of Victorian jurisprudence ― of all that was good or all that was bad about it. But, says prof. Walters, it has more often than not been seriously misrepresented. It is not, as is often believed, an academic codification of British constitutional law; Dicey’s aims for his project were at once less and more ambitious than that. Nor is it an example of dry, authoritarian Austinian positivism; Dicey’s jurisprudential views were more complex than those of his contemporaries.
According to prof. Walters, Dicey aimed not at presenting a detailed codification of an commentary on the entire constitutional law of the United Kingdom, but rather at presenting its most salient principles. He was “an artist” rather than a surveyor, in the words of a contemporary who, for his part produced a detailed (and, so far as I know, now entirely forgotten) survey of constitutional law. Nevertheless, it was ― unusually for a time which had seen the constitution examined from the standpoints of politics and history but not law ― a thoroughly legal work. But, for Dicey, a study of law could profitably look at principles, the “spirit” of a body of law, and not only the details of its rules.
Indeed, Dicey’s jurisprudential views and methodology are, according to prof. Walters, much misunderstood. Though he regarded himself as a lawyer rather than a historian or a political critic, his approach to law was not limited to looking at the rules of his own time and place. He sought to enrich his and his readers’ understanding of the law by taking at times a comparative approach, and sometimes by considering history. Furthermore, his account of law was not that of a neutral and dispassionate observer. Dicey thought that the law had a normative value, and gave a normative account of it. Indeed, prof. Walters suggests, albeit tentatively, that if we had to assign to Dicey the label of one of today’s jurisprudential schools, he would be a Dworkinian interpretivist rather than a positivist.
A final important point that prof. Walters makes concerns Dicey’s approach to legal scholarship as literature. “[T]here ought,” Dicey wrote, “to be no divorce between law and letters.” An academic lawyer should write not only, and indeed not mainly, for other academic lawyers, but for other educated citizens who happen to take an interest in the law. His work should be accessible and readable; not merely readable, indeed, but aesthetically enjoyable as well as instructive.
Although prof. Walters does not say this, I think that this last point too allows us to draw a parallel between Dicey and the late Ronald Dworkin. He too sought to reach out to audiences beyond the confines of legal academia (notably through his New York Review of Books columns); he too, I think, aspired to write in a way that would be appealing and compelling to a lay public. Whether he succeeded is probably debatable, but one need not like the result to think the attempt noble. In this, if in nothing else, I think that legal scholars ought to learn from Dicey ― and from Dworkin. (This blog, I daresay, has the same ambitions. Whether it succeeds is, of course, for you to judge, and I hope that the literary standards by which you do so are not too lofty.)
Dicey has been both an idol and a bogeyman for constitutionalists and legal philosophers; for some, such as yours truly, he has been both. Prof. Walters succeeds, I think, in making him a bit less of the latter, and more of the former. More importantly, it shows that neither of these labels is quite warranted. Dicey, as any great scholar, had a rich intellectual life, which ensures that he defies such easy categorization. And our own intellectual lives will be richer for paying attention to his.
Double Aspect 