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

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, and he was responsible for elaborating the principle. By the rule of law he means: 1) the absence of arbitrary or discretionary power on the part of government; 2) every man is subject to the ordinary law of the land administered by ordinary and usual tribunals; 3) the general principles of law, the common law rules of the constitution, in contradistinction to the civil law countries of Europe, are the consequences of rights of the subject, not their source. To illuminate this difference Dicey contrasts the rule of law with the French idea of droit administratif, which he translates as administrative law.

      Dicey makes the point that in Great Britain in 1885 there was no distinction between private and public law. One set of laws regulated and one system of courts adjudicated public and private interests alike. In subsequent decades this point ceased to be valid.

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      In Great Britain the officers of government were subject to the ordinary law of the land enforced by ordinary courts just as the private citizen was. In France, under the provisions of droit administratif, the government and its officials had special rights against private citizens and were to a great extent free from the jurisdiction of the ordinary courts. However nearly the French and English systems approach one another in actual practice, the principles governing them are different. The English system seeks to afford remedies for illegal administrative action, whereas the French hopes by setting up standards of conduct and by deterrent action to insure that the remedies will not be needed. Dicey saw that the rights of the citizen were potentially endangered by discretionary executive authority, because he equated discretion with arbitrariness, which meant that it was not subject to the rule of law. He claimed “discretionary authority on the part of the government must mean insecurity for legal freedom on the part of its subjects. . . . In this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint.” Letourneur, one of the most prominent modern French writers on droit administratif, has made a similar point: “Droit administratif is by nature a law of inequalities, in which the private person, who represents purely private interests, cannot be put on the same footing as the administration charged with the task of conducting public services in the general interest.”