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A. V. Dicey

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Our constitution, in short, is a judge-made constitution, and it bears on its face all the features, good and bad, of judge-made law.

Albert Venn Dicey (February 4, 1835 – April 7, 1922) was a British jurist and constitutional theorist who wrote An Introduction to the Study of the Law of the Constitution (1885). The principles it expounds are considered part of the uncodified British constitution.

Quotes

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  • Macaulay Mill and Burke are I believe the three authors to whom as far as I can judge I owe more than to any other teachers I could mention.
    • Letter to Miss Wedgwood (27 January 1893), quoted in Joseph Hamburger, Macaulay and the Whig Tradition (1976), p. 254, n. 94
  • When a body of twenty or two thousand or two hundred thousand men bind themselves together to act in a particular way for some common purpose, they create a body which, by no fiction of law but from the very nature of things, differs from the individuals of whom it is constituted.
    • "The Combination Laws as Illustrating the Relation Between Law and Opinion in England During the Nineteenth Century", Harvard Law Review Vol. 17, June 1904

Introduction to the Study of the Law of the Constitution (1885; 8th ed. 1915)

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  • The rule of law, as described in this treatise, remains to this day a distinctive characteristic of the English constitution. In England no man can be made to suffer punishment or to pay damages for any conduct not definitely forbidden by law; every man's legal rights or liabilities are almost invariably determined by the ordinary Courts of the realm, and each man's individual rights are far less the result of our constitution than the basis on which that constitution is founded.
    • p. xxxvii
  • The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.
    • pp. 37-38
  • Foreign observers of English manners, such for example as Voltaire, De Lolme, Tocqueville, or Gneist, have been far more struck than have Englishmen themselves with the fact that England is a country governed, as is scarcely any other part of Europe, under the rule of law.
    • p. 180
  • Modern Englishmen may at first feel some surprise that the "rule of law" (in the sense in which we are now using the term) should be considered as in any way a peculiarity of English institutions, since, at the present day, it may seem to be not so much the property of any one nation as a trait common to every civilised and orderly state. Yet, even if we confine our observation to the existing condition of Europe, we shall soon be convinced that the "rule of law" even in this narrow sense is peculiar to England, or to those countries which, like the United States of America, have inherited English traditions. In almost every continental community the executive exercises far wider discretionary authority in the matter of arrest, of temporary imprisonment, of expulsion from its territory, and the like, than is either legally claimed or in fact exerted by the government in England; and a study of European politics now and again reminds English readers that wherever there is discretion there is room for arbitrariness, and that in a republic no less than under a monarchy discretionary authority on the part of the government must mean insecurity for legal freedom on the part of its subjects.
    • p. 184
  • Our constitution, in short, is a judge-made constitution, and it bears on its face all the features, good and bad, of judge-made law.
    • p. 192
  • The fact that the most arbitrary powers of the English executive must always be exercised under Act of Parliament places the government, even when armed with the widest authority, under the supervision, so to speak, of the Courts. Powers, however extraordinary, which are conferred or sanctioned by statute, are never really unlimited, for they are confined by the words of the Act itself, and, what is more, by the interpretation put upon the statute by the judges. Parliament is supreme legislator, but from the moment Parliament has uttered its will as lawgiver, that will becomes subject to the interpretation put upon it by the judges of the land.
    • p. 409
  • All that necessarily results from an analysis of our institutions, and a comparison of them with the institutions of foreign countries, is, that the English constitution is still marked, far more deeply than is generally supposed, by peculiar features, and that these peculiar characteristics may be summed up in the combination of Parliamentary Sovereignty with the Rule of Law.
    • p. 468
  • Acts therefore which would not be justifiable in protection of a person's own property, may often be justified as the necessary means, either of stopping the commission of a crime, or of arresting a felon. Burglars rob A’s house, they are escaping over his garden wall, carrying off A’s jewels with them. A is in no peril of his life, but he pursues the gang, calls upon them to surrender, and having no other means of preventing their escape, knocks down one of them, X, who dies of the blow; A, it would seem, if Foster's authority may be trusted, not only is innocent of guilt, but has also discharged a public duty.
    • p. 494
  • A story told of that eminent man and very learned judge, Mr. Justice Willes, and related by an ear-witness, is to the following effect:—Mr. Justice Willes was asked: "If I look into my drawing-room, and see a burglar packing up the clock, and he cannot see me, what ought I to do?" Willes replied, as nearly as may be: "My advice to you, which I give as a man, as a lawyer, and as an English judge, is as follows: In the supposed circumstance this is what you have a right to do, and I am by no means sure that it is not your duty to do it. Take a double-barrelled gun, carefully load both barrels, and then, without attracting the burglar's attention, aim steadily at his heart and shoot him dead."
    • p. 494, n. 4

Quotes about A. V. Dicey

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  • [Dicey's The Law of Domicil] not only reduced to order one of the most intricate and technical branches of law...but exerted a potent influence on its development.
    • William Martin Geldart, quoted in R. S. Rait, 'Dicey, Albert Venn (1835–1922)', The Dictionary of National Biography, 1922–1930, ed. J. R. H. Weaver (1937), p. 260
  • Dicey will hold, in the history of the legal literature of the nineteenth century, a place not unlike that which Blackstone holds in the legal literature of the eighteenth century; for both have written books which became classics whilst they were still alive... Dicey's book [Law of the Constitution] is a classic, because he added to his knowledge of English law a knowledge both of the constitutional law of other states, and a knowledge of English history.
  • His Introduction to the Study of the Law of the Constitution, originally published in 1885, was at once recognized to be no mere technical discussion but a literary contribution to the analysis and interpretation of the fundamental ideas which underlie the political thought and life of the nation.
    • R. S. Rait, 'Dicey, Albert Venn (1835–1922)', The Dictionary of National Biography, 1922–1930, ed. J. R. H. Weaver (1937), p. 260
  • Lectures on the relation between Law and Public Opinion in England during the Nineteenth Century was published in 1905 and was received as a notable contribution to political philosophy—"the esprit des lois of our times".
    • R. S. Rait, 'Dicey, Albert Venn (1835–1922)', The Dictionary of National Biography, 1922–1930, ed. J. R. H. Weaver (1937), p. 260
  • Dicey's intellectual and critical powers were accompanied by a lovable simplicity of character and a lively wit. "It is better to be flippant than dull" he used to tell his pupils, and it was the force of his epigrams that made his early reputation as a speaker in the Oxford Union. His remarkable faculty of exposition, acquired by persistent revision of his compositions, was sometimes marred by a tendency to redundancy of which he could not rid himself.
    • R. S. Rait, 'Dicey, Albert Venn (1835–1922)', The Dictionary of National Biography, 1922–1930, ed. J. R. H. Weaver (1937), p. 261
  • [I]t was A.V. Dicey whose writing – above all his classic textbook The Law of the Constitution – had most impact on me. It had long been fashionable to attack Dicey for his doctrinaire opposition to the new administrative state, and there are plenty of learned commentators still inclined to do so. But I found myself immediately at home with what he said – it is not perhaps without significance that though Dicey's was a great legal mind, he was at heart a classical liberal. The "law of the constitution" was, in Dicey's words, the result of two "guiding principles, which had been gradually worked out by the more or less conscious efforts of generations of English statesmen and lawyers". The first of these principles was the sovereignty of Parliament. The second was the rule of law, which I will summarize briefly and inadequately as the principle that no authority is above the law of the land. For Dicey, writing in 1885, and for me reading him some seventy years later, the rule of law still had a very English, or at least Anglo-Saxon, feel to it. It was later, through reading Hayek's masterpieces The Constitution of Liberty and Law, Legislation and Liberty that I really came to think of this principle as having wider application.
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