At Balliol College, Oxford, Dicey imbibed a liberal life. He studied Greats. His tutor was college Master and famous classical scholar Benjamin Jowett, who claimed,
First come I. My name is J-w-tt.
There’s no knowledge but I know it.
I am Master of this College,
What I don’t know isn’t knowledge.
Jowett was no cobwebbed academic. He is remembered as a great Balliol reformer and his belief in the liberal dictum of human progress and perfectibility supplied Dicey with an ideal philosophical and pedagogical environment. Jowett was an august translator of Plato and Thucydides but the liberal thinkers Jeremy Bentham and John Stuart Mill were the great philosophers imbibed by the young Dicey. Indeed, all his life Dicey remained in communion with the liberal ideal of individualism. This, he argued to the end, ‘in its true sense is a source of both greatness and of goodness; and much as we must value all social progress with its accompanying restrictions, we must watch jealously lest these restrictions endanger individuality, and thus destroy that originality which is the very spring of human progress.’
At Oxford, Dicey belonged to the Old Mortality Society, a short-lived undergraduate club intended to permit its members ‘such intellectual pastime and recreation as should seem most suitable and agreeable’, with a roster of names only the Victorians could hope to see. From the poet Algernon Charles Swinburne to the Belfast-born future Cabinet member James Bryce, probably Dicey’s closest university friend, much nineteenth-century liberal life was here. Their cause was ‘freedom of thought’ and they were indifferent to the theological questions which consumed so many of their intellectual peers. At this point Dicey can be seen as an advanced radical with all the correct opinions. He was in favour of franchise extension, sympathetic to female suffrage and irked by the comfortably somnolent Anglicanism he observed all round him. Later, Bryce noted of his clubmates that all had ‘nothing’ in common, meaning that none of them came up to Oxford possessing much by way of connections or material advantages. These young men were self-improvers and their aim was to go out and improve others.
We come now to that element in Dicey’s life of which history has tended to approve, that is, his part in our laws. What he achieved here should be understood as being part of the Victorian settlement he wanted to uphold. His scholarship drew out lessons from extant laws, to make their application easier and more efficient, all of which amounted to an effort to preserve what was good. He believed that English law ‘will be the lasting monument of England’s greatness’, above even her empire and arts and parliaments. His own role in this legal context began with his election in 1860 to a fellowship at Trinity College, Oxford.
Dicey failed four times to secure academic preferment at Oxford, before Trinity gave him the nod, and he succeeded on this occasion solely because the college allowed him, as an invalid, to dictate his entry, an essay that focused on the Privy Council. The piece won that year’s university Matthew Arnold memorial prize and is just as interesting for what it revealed about Dicey’s own contemporary opinions in what was now becoming a post-protectionist world. As a supporter of laissez-faire economics, he pronounced himself astonished at how much the Privy Council had interfered with trade ‘in a way no ruler would now ever dream … the fact that government interference is an evil is now too well established to need the confirmation of further arguments’.
Dicey now had the security of a university position. He would hold his fellowship until he forfeited it on his marriage to Eleanor Bonham Carter, a member of the distinguished English liberal family, in 1872, and could begin to explore what the world offered. By 1863, he had been called to the bar at the Inner Temple where he came under the sway of the work of John Austin, the founder of English analytical jurisprudence.
Austin insisted on the distinction between the law as it is and as it ought to be. Therefore, he attacked the theory of natural law, which held that ‘positive law must reflect a standard of morality’. Austin replied that law arose not from morals but from the need to defer to the power which compelled submission and in turn submitted to nothing above itself. Finally, Austin sought to reduce the law conceptually to a few simple questions on each discrete issue, so systematising the haphazard development of centuries, making the law rational, and freeing it from ‘verbal imprecision’. In essence, Austin was arguing against any necessary connection between law and morality and for the importance of codification and of explication. He was, in other words, a legal positivist. His aim, drawing heavily as it did upon the work of Bentham and others, was to transform the law into a true, delineated and codified science.
Dicey took what he needed from Austin’s philosophy while expanding other aspects of his thought and discarding the rest. He appreciated the need to resolve legal questions by stating the fundamental principles which had been derived from close study of the matter at hand. Moreover, Dicey’s opinion was that Austin’s clarity of thought and method of argument admirably lent themselves to this improved and shared understanding of the law. However, like any good Victorian, Dicey was much preoccupied by issues of morality and in this case he regretted Austin’s strict separation of law from morality. He resolved this tension by holding ‘the law’ to be external, while morality was internal: ‘law is concerned with acts, morality with character’. His key insight in this regard was a point that Austin had missed, that it was vital for the public to approve of the law. Without this popular support and respect, the law would wither and die.
A second key conceptual achievement had to do with the issue of sovereignty. This, Dicey insisted, was singular and supreme. It was something which could only reside in the state but for Dicey its sole purpose was to provide for individual rights. This was the liberal vision of British freedom of individual liberty based on a strong but reticent state. Moreover, this was specifically something which had happened here, it existed in Britain already. Dicey made no intrinsic claims for universality. He was describing English law, in theory and in practice. That it dovetailed perfectly with his mid-Victorian liberalism was doubtless a happy accident, a secular version of providential good luck.
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In 1865, a rebellion broke out in the British colony of Jamaica. In October of that year, a group of islanders marched on the courthouse at Morant Bay, a coastal town east of Kingston. The demonstration was sparked by the poverty and widespread deprivation which characterised life in the colony. Seven men on the march were shot and killed by armed personnel defending the courthouse, which was then burned to the ground by the protestors. In the ensuing unrest, twenty-five people were killed. The trouble at Morant Bay was not the end of the trouble, for it ignited further unrest across the island. The British governor, Edward Eyre, declared martial law and by the time the rising was quelled more than four hundred people had died.
Eyre’s actions led to a debate in Britain, with public opinion sharply divided. Some praised the governor’s actions, others deplored them as excessively violent. The episode led to one of Dicey’s earliest radical acts, when he joined his cousins Leslie and James Fitzjames Stephen in subscribing to the ‘Jamaica Committee’, which sought to bring Eyre to trial for what was regarded as his scandalous misrule of the island. The Committee consisted of some of the most illustrious worthies of liberal Britain, including John Bright, Charles Darwin, John Stuart Mill and the biologist Thomas Henry Huxley. Its ultimate aim was to have Eyre tried for murder. The bid failed but the Committee’s legacy remained. Dicey never lost his opposition to lawlessness and tyranny, no matter whence it emanated, and his sense of duty to those whom he felt were, or ought to be, under the protection of British laws and justice.
The Jamaica Committee in some ways marked the beginning of the apogee of Dicey’s embrace of classic liberalism. For a spell at this time, one sees radicalism and an embrace of the concept of improvement as a moral ideal. In his contribution to Essays on Reform, published in 1867, the great year of electoral reform, Dicey reaffirmed orthodox liberal op
position to class war. There was no ‘balance of class interests’ which it was better for politics to seek to achieve. Representation of individuals remained the goal. Dicey was an early opponent of any tendency which would lead to a progressive caste system, breaking society down into groups which individuals were supposed to see as forming their ‘identity’ before and above their own private one. Yet at this point he railed specifically against the elite, against any idea that class war should be waged from above and that society was best off run by those who knew best. As he noted in his essay, ‘Advocates of class representation desire such a political arrangement as would enable a minority, in virtue of their education, wealth, etc. to carry out their views, even though opposed to the sentiments of the majority of the people.’
This was a quintessential liberal assault on what it saw as entrenched Tory privilege. ‘Half the evils of modern England,’ he noted, ‘arise from the undue prominence of class distinctions [and] the fundamental fault of class representation is its tendency to intensify differences which it is an object of political reform to remove.’ As his biographer Richard A. Cosgrove put it, a liberal such as Dicey considered that ‘Each man was the best manager of his own affairs; citizens ought to be considered individuals first, members of a class second.’ His desire, in self-conscious opposition to reactionary Tories, was to have the political class encompass working men, rather than seek fearfully to exclude them.
At Oxford too Dicey articulated his radical principles. He inveighed in moral terms against absentee fellows who consumed funds which could have been spent on education and he lauded the virtues of open competition. Everywhere he saw colleges which were closed corporations, the aim of which was their own perpetuation. This was a moral scandal, for education was the key to the great liberal principles of emancipation and participation in civic discourse. Dicey’s views were so advanced in these mid-Victorian times that he even favoured degrees for women, a state of affairs which at length manifested in the United Kingdom in 1878, when the University of London began awarding degrees to female students.
At this time too Dicey worshipped all the conventional liberal heroes, among them the Genoese politician Giuseppe Mazzini, who helped to create the Italy of the Risorgimento; Lajos Kossuth, who led the Hungarians during the ‘Springtime of the Nations’ in 1848 and whom Palmerston had wanted to entertain at his Broadlands estate, as well as the states of the Union in the American Civil War, for what could be more antithetical to individualism than slavery? He opposed Napoleon III, whom he regarded as a mountebank. On the question of press freedom, Dicey applauded the liberty he observed in action at home, noting the paper guarantees of it abroad but the fact of it in Britain. The liberty of the British press, he felt, lay in its freedom to do things first and perhaps be sued afterwards, without first being licensed to do them.
In other ways, however, he began to move towards a more nuanced understanding of liberalism. He remained dedicated to the notion, the Benthamite idea, one which he always had supported, that reason and the human intellect set itself to solving problems so that life could be better and happier. This was the very point of rational legislation, of a more scientific way of doing things. He noted what he regarded as the mistakes that others made by channelling this philosophy to far more interventionist ends. Excessive intervention was, he began to feel, a grave error and to the end of his life he saw that while the good the state did when it acted was habitually visible, the harm it did was not. ‘Few are those,’ he lamented, ‘who realise the undeniable truth that State help kills self-help.’ Dicey did not want to free the individual from the prejudices of the past, simply in order to make that individual the helpless ward of the state in the future.
Dicey would continue this move away from radical politics and towards moderation for the rest of his life. In a famous formulation he first rehearsed on his friend Bryce, Dicey summed up his own times in this pessimistic fashion: ‘Toryism was a reminiscence – Benthamism is a doctrine – collectivism is a hope.’ So the nineteenth century had by this reckoning begun with legislative quiescence, with a sated ruling class, before blossoming into the individualism and freedom of his youth and then, alas, moving mistakenly towards the collective state action of his old age. By 1914, Dicey was mournfully concluding that ‘by 1900 the doctrine of laissez-faire, in spite of the large element of truth which it contains, had more or less lost its hold on the English people’. This was the world of the Liberal Party’s 1906 Trade Disputes Act, which granted freedom from liability in tort to trade unions. Or as Dicey exactingly saw it, elevated one segment of the community to being a legally privileged one, possessing rights others lacked. Whatever this was, it was for Dicey manifestly not liberalism and his duty was to make the case against it.
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In 1882, after two years of stiff competition, a committee chaired by Conservative politician Lord Salisbury, later Prime Minister, appointed Dicey to the pulpit from which he was to accomplish his enduring work, the Vinerian Professorship of English Law at Oxford. The Vinerian position had first been endowed in the middle of the eighteenth century and Sir William Blackstone had been its first holder with the intention of teaching the Common Law of England, and assist in its evolution. Until that time, only Canon Law and Civil Law had been taught at Oxford and Cambridge, meaning that the most practical application of the law was not taught in a university environment. The Vinerian had altered this state of affairs, in the process becoming central to the study of English law. Now, although it remained in theory a position of considerable importance and prestige, in practice it had fallen into a state of decrepitude.
Leaving London and the great world for Oxford was a move Dicey made reluctantly but dutifully. From his position as Vinerian Professor, he could do what he had always wanted to do, help to change the world for the better. One of his predecessors ‘wrote a book … no one ever read, [another] discharged his duties, if at all, by deputy, while he himself held a judgeship in India’. He could do better than these predecessors, so, while this was neither the position on the bench nor in the Commons’ chamber that he in his heart desired, yet he saw himself being obliged faithfully to discharge the role to the best of his abilities. Duty came first and Dicey would maintain this sense of obligation, holding the Professorship until 1909.
In taking up the Vinerian, Dicey was able to demonstrate what the professional teaching of law at university could really do. Rather than muddle through using on-the-job training at the Inns of Court, he could channel the resources and prestige of Oxford to teach the law as a whole and in context. Analysis could be taught as a technique, the law could be understood as a series of rules and exceptions, with their elucidated principles clearly set out and those doctrines’ real and absolute limits properly appreciated. Professors, in short, could profess the rationality of principle-based law. There was always a reason to be found, for otherwise the law was unreasonable. What could be more Victorian?
Harold Hanbury, who was one of Dicey’s more illustrious twentieth-century successors as Vinerian Professor (1949–64), praised Dicey for being ‘one who revived a tradition, always a more difficult feat than to create a tradition’. Yet the manner in which Dicey taught was secondary to what he taught, and here Hanbury again points, in damning terms, to the fate Dicey has suffered: ‘His critics have misquoted him and criticised their own misquotations.’ The law of the Constitution as set out by Dicey in Oxford is worth examining. It is a law which has endured, though not without strain, to this day.
Dicey divided British legal development into three parts: the sovereignty of Parliament; the rule of law, a ubiquitous phrase to our ears but one he in fact originated; and the idea of constitutional conventions. Later legal critics, such as the late Sir Ivor Jennings, held that ‘Dicey’s Constitution was the one his politics produced’ but it seems that the opposite could be true. That is, Dicey’s politics in large part stemmed from his admiration for the Constitution he accurately described. Dicey further divided his d
escription of the Constitution into ‘true laws’. That is, statute or common law and rules which were not technically laws but which were what he called conventions, with a force of their own.
The sovereignty of Parliament was ‘the dominant characteristic of our political institutions’ and it could not bind its successors in that there was no ‘basic law’ or other constitutional document regulating Parliament. Such a declaration is a mere commonplace now but it was a conceptual revelation in Dicey’s own time. Some have argued he asserted this as theory but neglected to show it as historical fact and, even further than this, that his assertion was such as to subsequently make it fact, so completely were his dictums accepted in his own time. Regardless, the impact of Dicey is total, for, try as its practitioners might, the law has never since been quite able to shake off what Dicey himself said it was and this in itself is an extraordinary and lasting legacy.
Naturally, Dicey was aware of politics in his accounting of the Constitution and distinguished between legal sovereignty, that is the sovereignty of Parliament, and political or popular sovereignty. There were thus external limits on sovereignty, with the possibility that a law constitutionally passed but repugnant to the vast majority could simply be dispensed with by them. It is important to note that this was only theoretical. However, it was to be a theory which caused Dicey much sorrow during the final, dark stages of the Irish Home Rule crisis. For the time being, Dicey was learning to enjoy the stability, security and authority granted by the Vinerian and learning also to delight in his ability to delineate and explain the unique characteristics and glorious flexibility of the British Constitution. This was an entity which could, unlike its known, codified equivalent, respond swiftly and decisively to the political needs of the nation. Indeed, it was precisely this agility which rendered superfluous any need to codify it, for to do so would be to rob it of its essence.
The Victorians Page 30
