The Encyclopedia of Libertarianism

Dicey, Albert Venn (1835-1922)

Albert Venn Dicey was an influential British professor of law whose book An Introduction to the Study of the Law of the Constitution organized ancient and modern theories of law into a single constitutional principle he termed the rule of law.

Dicey was born on February 4, 1835, the third son of the owner of The Northampton Mercury, a weekly newspaper. His middle name paid homage to the social reformer and logician John Venn, in whose Clapham Sect of reformers the Dicey family was quite active. Albert was taught at home before entering King’s College School, London, and then Balliol College, Oxford, where he took a double first in classics and where he found a circle of friends, among them Algernon Swinburne, T. H. Green, and James Bryce, all of whom would prove influential both in Dicey’s life and English thought. In 1860, Dicey wrote a college prize essay on the British Privy Council that sparked a lifelong interest in constitutional law, and he became a fellow of Trinity College, Oxford. The following year, he entered the Inner Temple and was called to the bar in 1863. In 1872, he married Elinor Mary Bonham-Carter, the daughter of an influential Member of Parliament.

Between 1861 and 1882, Dicey lived in London, practiced law, and wrote extensively, contributing articles to a number of newspapers, including his father’s, in addition to writing two lawbooks. Although these books were not prominent, they led to his election as Vinerian Professor of English Law in 1882, which took him back to Oxford and to a fellowship at All Souls College. He held his fellowship for more than a quarter century, during which time he produced his greatest works. While a fellow and following his retirement, Dicey became prominent in public affairs. He was frequently in the public eye promoting traditionalist, conservative, and Unionist views. He died in Oxford on April 7, 1922.

While Vinerian Professor, Dicey wrote many articles and gave numerous lectures that placed him in the upper ranks of the Victorian intelligentsia. He wrote several books on legal practice, most notably A Digest of the Law of England with Reference to the Conflict of Laws and a halfdozen books presenting his political views, particularly arguing against Home Rule in Ireland. Dicey’s continuing influence comes from two other books, most important his Introduction to the Study of the Law of the Constitution, published in 1885, and, to a lesser degree, his Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century, written as a Harvard lecture 20 years later and updated n 1919.

Law and Public Opinion, his neo-Benthamite polemic on social and legal history, argued that the English law throughout the 19th century had been directly influenced first by toryism, then by individualism, and finally by collectivism. In broad terms, Dicey approved of the reforming influence of Jeremy Bentham, John Stuart Mill, and the economists, particularly Harriet Martineau, and he worried about the collectivist influence of Unionists (those who sought a constitutional union between Ireland and Great Britain), suffragettes, and what we might now call socialists, all of whom he saw as a threat to the constitution of England. Although Dicey’s historical methodology has been criticized, his summaries of the development, acceptance, and criticisms of laissez-faire ideology among intellectuals and in legislation, remain a useful study.

The Law of the Constitution, written at the height of Dicey’s powers and after long study, endures as a masterpiece of exposition and jurisprudence, particularly its articulation of a theory of the rule of law. More fundamentally, Dicey’s work presented a coherent argument for an unwritten British constitution that at once revived earlier discussions and refined them along new lines. Arguing that there existed a rich tradition of law protecting individual rights and freedoms under a framework of parliamentary sovereignty, Dicey succeeded in reinventing the arguments of both Edward Coke and Edmund Burke in a generally Whiggish history that had great resonance for the Victorian intellectual. It is true that Parliament had succeeded to the powers and the responsibilities once held by the monarch, but the law, he contended, persisted as an independent force. The purpose of the law was the security of the rights of the individual.

Dicey’s basic principles for the rule of law were three: that no one can be punished or lawfully interfered with by the authorities except for breaches of law, which must be defined by the proper authority; that no one is above the law, and everyone is subject to the ordinary law of the land; and, finally, that no one should be possessed of the authority to interfere with the rights of a private person, which are defined and protected by the courts of law. Dicey saw the rights of English subjects as well protected by an unwritten constitution, better indeed than they would be by a written constitution or bill of rights, because the courts could ascertain rights as consequences of general protections of the law.

So again the right to personal liberty, the right of public meeting, and many other rights, are part of the law of the constitution, though most of these rights are consequences of the more general law or principle that no man can be punished except for direct breaches of law (i.e. crimes) proved in the way provided by law (i.e. before the Courts of the realm).

Developing his idea of the Rule of Law as both a specially English creation and as a principle of universal appeal, Dicey both reinforced the Victorian certitude in the primacy of British law and governance (which had justified its imperial ambitions) and asserted a domestic political claim that would support a constitution that defended individual interests against collectivist change. Both aspects of his theory strongly contrasted the limits of English common law with the discretion of French droit administratif. Still, Dicey’s idea of the constitution was conservative, not merely traditional. Among his arguments for constitutional reform was a defense of the referendum as a people’s veto over legislation that does not command public support. The allure of Dicey’s Law of the Constitution, however, extended beyond national pride. Its clear prose presented a claim that lawyers accepted and nonlawyers could understand, that the law enshrined, indeed that English law had long confirmed, a special protection of individual freedom from state interference.

 

Further Readings

Cosgrove, Richard A. The Rule of Law: Albert Venn Dicey, Victorian Jurist. London: Macmillan, 1980.

Dicey, Albert Venn. Introduction to the Study of the Law of the Constitution. Indianapolis, IN: Liberty Fund, 1982.

———. Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century. London: Macmillan, 1919.

Ford, Trowbridge H. Albert Venn Dicey: The Man and His Times. Chichester, UK: Barry Rose Law Publishers, 1985.

Qvortrup, Matt. “A.V. Dicey: The Referendum as the People’s Veto.” History of Political Thought 20 no. 3 (1999): 531–546.

Rait, Robert S., ed. Memorials of Albert Venn Dicey, Being Chiefly Letters and Diaries. London: Macmillan, 1925.

Shinn, Ridgway F., Jr., and Richard A. Cosgrove, eds. Constitutional Reflections: The Correspondence of Albert Venn Dicey and Arthur Berriedale Keith. Lanham, MD: University Press of America, 1996.

Originally published .