La'v of the Constitution Introduction

INTRODUCTION TO THE STUDY OF THE LA'V OF THE CONSTITUTION INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION BY A. V. DICEY, K.C., HoN. D.C.L. OF THE INNER TEMPLE; FORMERLY VINERIAN PROFESSOR OF ENGLISH LAW, FELLOW OF ALL SOULS COLLEGE, OXFORD, HON U.D. CAMBRIDGE, GLASGOW, AND EDINBURGH TENTH EDITION WITH INTRODUCTION BY E. C. S. WADE, Q.C., M.A., LL.D., F.B.A. DOWNING PROFESSOR EMERITUS OF THE LAWS OF E:-IGLAND IN THE UNIVERSITY m· CA~IBRIDGE; FELWW OF GONVILLE AND CAIUS COLI,EGE CAMBRIDGE; HONORARY BENCHER OF INNER TEMPI,E; H0:-1. D.C.L. DURHUI M ISBN 978-0-333-05255-6 ISBN 978-1-349-17968-8 (eBook) DOI 10.1007/978-1-349-17968-8 This book is copyright in all countries which are signatories to the Berne Convention Reprint of the original edition 1979 All rights reserved. No part of this publication may be reproduced or transmitted, in any form or by any means, without permission First Edition 1885. Second Edition 1886. Third Edition 1880. Fourth Edition 1893. Fifth Edition 1897 Sixth Edition 1902. Seventh Edition 1908. Eight Edition 1915. Reprinted 1920 (twice) Reprinted 1923, 1924, 1926, 1927, 1931. Ninth Edition 1939. Reprinted 1941, 1945, 1948, 1950, 1952 1956. Tenth Edition 1959. Reprinted 1960, 1961, 1962, 1964,1965,1967,1973, 1975, 1979 Published by THE MACMILLAN PRESS LTD London and Basingstoke Associated companies in New York Dublin Melbourne Johannesburg and Madras SBN 333 01536 3 (hard cover) 333 05255 2 (paper cover) The paperback edition of this book is sold subject to the condition that it shall not. by way of trade or otherwise, be lent1 resold, hired out, or otherwise circulated without the puolisher's prior consent, in any form of binding or cover than that in which it is published and without a similar condition including this condition being imposed on the subsequent purchaser. PREFACE TO THE FIRST EDITION THis book is (as its title imports) an introduction to the study of the law of the constitution ; it does not pretend to be even a summary, much less a complete account of constitutional law. It deals only with two or three guiding principles which pervade the modern constitution of England. My object in pub lishing the work is to provide students with a manual wh.ich may impress these leading principles on their minds, and thus may enable them to study with benefit in Blackstone's Commentaries and other treatises of the like nature those legal topics which, taken together, make up the constitutional law of England. In furtherance of this design I have not only emphasised the doctrines (such, for example, as the sovereignty of Parliament) which are the founda tion of the existing constitution, but have also constantly illustrated English constitutionalism by comparisons between it and the constitutionalism on the one hand of the United States, and on the other of the French Republic. Whether I have in any measure attained my object must be left to the judgment of my readers. It may perhaps be allow able to remind them that a book consisting of actually delivered lectures must, even though revised v vi LAW OF THE CONSTITUTION for publication, exhibit the characteristics inseparable from oral exposition, and that a treatise on the principles of the law of the constitution differs in its scope and purnose, as well from a constitutional history of England as from works like Bagebot's incomparable English Constitution, which analyse the practical working of our complicated system of modern Parliamentary government. If, however, I insist on the fact that my book bas a special aim of its own, nothing is further from my intention than to underrate the debt which I owe to the labours of the lawyers and historians who have composed works on the English constitution. Not a page of my lectures could have bE!en written without constant reference to writers such as Black stone, Hallam, Hearn, Gardiner, or Freeman, whose books are in the bands of every student. To three of these authors in particular I am so deeply indebted that it is a duty no less than a pleasure to make special acknowledgment of the extent of my obligations. Professor Hearn's Government of England bas taught me more than any other single work of the way in which the labours of lawyers established in early times the elementary principles which form the basis of the constitution. Mr. Gardiner's History of Eng land has suggested to me the conclusion on which, confirmed as I found it to be by all the information I could collect about French administrative law, stress is frequently laid in the course of the following pages, that the views of the prerogative maintained by Crown lawyers under the Tudors and the Stuarts bear a marked resemblance to the legai and adminis trative ideas which at the present day under the PREFACE vii Third Republic still support the droit administratif of France. To my friend and colleague Mr. Freeman I owe a debt of a somewhat different nature. His Growth of the English Constitution has been to me a model (far easier to admire than to imitate) of the mode in which dry and even abstruse topics may be made the subject of effective and popular exposition. The clear statement which that work contains of the difference between our so-called "written law" and "our conventional constitution," originally led me to seek for an answer to the inquiry, what may be the true source whence constitutional understandings, which are not laws, derive their binding power, whilst the equally vigorous statements contained in the same book of the aspect in which the growth of the constitution presents itself to an historian forced upon my attention the essential difference between the historical and the legal way of regarding our institutions, and compelled me to consider whether the habit of looking too exclusively at the steps by which the constitution has been developed does not prevent students from paying sufficient attention to the law of the constitution as it now actually exists. The possible weakness at any rate of the historical method as applied to the growth of institutions, is that it may induce men to think so much of the way in which an institution has come to be what it is, that they cease to consider with sufficient care what it is that an institution has become. A. V. DICEY. ALL SouLS CoLLEGE, OXFORD, 1885. PREFACE TO THE TENTH EDITION PROFESSOR DICEY amended the text up to and including the Seventh Edition 1908, so as to " em body any change in or affecting the Constitution" which had occurred since 1885, for it was the main features of the constitution in that year which Dicey set out to describe. When the time came in 1914 for preparing what proved to be the last edition by the author, he adopted a different course. Instead of making further changes in the text he wrote a long Introduction which served two purposes. (I} To trace and comment on the effect upon the main principles of the constitution of changes of law or of the working of the constitution during the period between 1885 and 1914, as the author had expounded it; and (2} to study and analyse the main constitu tional ideas which could in 1914 fairly be called new, either because they had come into existence or had begun to exert a new influence during that period. As on the occasion of the Ninth Edition in 1939, I have tried to follow this method. The influence of Dicey lies in the principles stated in the body of the book rather than in matters of contemporary contro versy, such as figured in his Introduction in 1914. In this way it is possible to preserve the text of a IX X LAW OF THE CONSTITUTION book which is a classic and at the same time to review in the light of the present day those aspects of the constitution which Dicey used to illustrate his prin ciples. Dicey never claimed that the constitutional ideas which he expounded were axiomatic principles which must abide for all time. Indeed as far back as 1885 he felt himself compelled " to consider whether the habit of looking too exclusively at the steps by which the constitution has been developed does not prevent students from paying sufficient attention to the law of the constitution as it now actually exists." 1 He was conscious of the danger of the historical method as applied to the growth of institutions, lest it might induce men to consider with insufficient care what it is that an institution has become. It is idle to speculate as to the extent to which Dicey might have changed his views had he been writing of the modern constitution. My task has been to summarise some of the modifications which he himself suggested, in particular his ultimate accept ance of administrative law, and to discuss the applica tion of his three principles under modern conditions. It is worth attention that Dicey's critics seldom sug gest any addition to his three principles. They are concerned to determine whether his principles are right or wrong rather than to suggest there may be others. The last twenty years have seen a revival in the interest roused by the conception of the rule of law. There is little doubt that his conception of the rule of law has influenced the development of public law in this country more than his exposition of the sovereignty of Parliament and conventions of 1 Preface, lst cd., p.

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