INTRODUCTION

Most readings of Dicey's private international law Digest have been fixated on providing a definitive answer to a few questions: whether Dicey was truly a positivist; whether Dicey took ‘the final and decisive step’ in isolating English private international law scholarship from continental European thought; and whether his principle of the recognition of vested rights was a helpful and coherent alternative to theories focused on comity. I argue that reading Dicey's private international law work through these questions is both unhelpful and misleading. As I show in Section 2, these questions are unhelpful because they do not reveal anything of essence about Dicey's thought when asked in the abstract and they are misleading because they encourage us to read Dicey within overly narrow, unrealistic analytical categories.

Instead, in Section 3, I propose that we read Dicey's private international law thought in the penumbra, in other words, in the areas where Dicey seems most uncertain about his own propositions, their context, and their implications, namely questions of empire and gender. However, in encouraging us to look at Dicey's forays into these questions I do not mean to make the implausible claim that Dicey was either a feminist or an anti-imperialist. In other words, the value of reading Dicey in the penumbra of his thoughts on these matters does not rest in his substantive views on gender and empire.

DICEY THE PROFESSOR

On Saturday 21 April 1883, a little over four months after his election as Vinerian Professor of English Law, A. V. Dicey delivered his inaugural lecture in the Hall of All Souls College, under the title ‘Can English Law be Taught at the Universities?’ He gave a strongly affirmative answer to his titular question. Not only was the setting of a university suitable for the teaching of principles of English law, but the subject and the legal profession could, in Dicey's view, flourish only if a professional professoriate were entrusted with the task of identifying, encapsulating, recording and disseminating legal principles for the benefit of those who wished to study law in order to pursue a career in legal practice.

In Dicey's view, the provision of legal education through the universities would secure the following advantages, when compared with the prevailing method of aspiring barristers reading in chambers:

• 1. Teaching law as a whole with each part related to the others.

• 2. Inculcating the habit in students of analysing and defining legal concepts.

• 3. Encouraging students to look upon law as a series of rules and exceptions, and to carefully mark off the exact limits of ascertained principles.

• 4. Bringing about much needed reform of legal literature.

In his famous book, The Law of the Constitution, Albert Venn Dicey asserted that the ‘rule of law’ embraces the idea of ‘equality before the law’. The connection that Dicey drew between legality and equality has inspired both praise and criticism in the century after his death. By placing a conception of equality at the heart of the rule of law, Dicey opened up promising but contested lines of inquiry into the nature of constitutionalism within the common law tradition. Where those lines lead depends, in part, on what Dicey meant by legal equality.

In many jurisdictions today, equality is understood to be a fundamental human right – a right to be free from discrimination based on race, ethnicity, religion, sex, and other grounds, a right that furthers a vision of society in which everyone's equal moral worth is affirmed. The emergence of equality in this sense is usually understood to be part of the social changes that defined the latter half of the twentieth century. Could Dicey, a self-described ‘mid-Victorian’,2 have had anything so modern in mind by ‘equality before the law’? Surely not.

Yet this answer is only partly correct. An exploration of Dicey's work beyond The Law of the Constitution may suggest different perspectives for understanding the connection that he made between legality and equality in his book.

INTRODUCTION

Dicey's account of parliamentary sovereignty is not exactly a neglected aspect of his work. Nevertheless, it bears revisiting. To see why, it will be instructive to bring Dicey's account into contact with two recent developments in UK constitutional law.

The first development is a cluster of cases decided by the Supreme Court that endorse, or appear to endorse, a revisionary understanding of parliamentary sovereignty. According to this understanding, Parliament's sovereignty is encroached on where Parliament is subject to certain kinds of practical pressure in legislating, and where courts interpret statutes by reference to considerations other than the intentions of Parliament.

The second development is the growing role played by the interpretive approach known as the ‘principle of legality’. The principle holds that statutes are to be interpreted so as to be compatible with certain basic constitutional norms, unless they contain especially clear words to the contrary. Judicial reasoning in this vein is hardly new, but the principle has been deployed to particularly striking effect in several recent cases, and has emerged as among the most potent and distinctive judicial techniques in contemporary public law.

These two developments stand in tension. The principle of legality is not well characterised as being limited to divining legislative intentions, and it inevitably exerts pressure on Parliament to legislate compatibly with fundamental constitutional principles. If the Supreme Court's recent, revisionary approach to parliamentary sovereignty is sound, the principle of legality rests on unstable foundations.

In 1907, one G. Locker-Lampson published a survey of Irish history since the 1800 Act of Union, A Consideration of the State of Ireland in the Nineteenth-Century. Ireland before the Union, he wrote, was a sink of Irish poverty and English corruption, where sinecures were secured for those ‘bawds and bastards whom public opinion would have made it dangerous to provide for on the English Pension List’. In 1798, rebellion had been cynically provoked by the government, in a spirit of ‘political malignity’, so that the peasantry, ‘hounded to desperation by a deliberate policy of cruel persecution’, could be crushed in arms. In the subsequent ‘carnival of butchery’ the rebel Irish ‘were drowned in their own revolutionary blood’. The Act of Union, ‘unconstitutional to the core’, was promoted by Prime Minister Pitt's ‘cold, formal, stately verbiage’ and secured by ‘trickery and corruption’. It marked the abandonment of Irish national interests by its land-owning classes, who voted their own parliament out of existence, and thereby became ‘traitors’. The Union was a ‘farce’ and by 1810, relations between Britain and Ireland had become ‘well-nigh insufferable’.

The landed elite, having betrayed their country, ‘severed themselves entirely from the native Irish’, threw in their lot with England, and resisted all reasonable attempts at reform. The legacy of conquest and confiscations had produced ‘perhaps the worst agrarian system the world has ever seen’. The Catholic masses, however, ‘after a period of cruelty, anguish, and hopeless combat that would have crushed into the dumb servility of despair any other race of men … rose from their mother soil … unconquered and proud’.

INTRODUCTION

The 1923 review of the third edition (1922, with Arthur Berriedale Keith) of Dicey's Conflict of Laws in the Harvard Law Review, by the great American scholar of the conflict of laws and author of the First Restatement, Professor Joseph Beale, contains a touching tribute:

Albert Venn Dicey died at his home on Banbury Road in Oxford on 7 April 1922, at the age of 87. Three days later, he was buried at St Sepulchre’s Cemetery, off Walton Street (see photograph at p. 108). His wife of 50 years, Elinor, survived him by 19 months and is buried alongside him.

Almost 100 years later, one of us (a student of the conflict of laws) ventured to the Cemetery in search of Dicey’s resting place. The site has been carefully tended in recent years by volunteers, but many of the gravestones understandably show signs of age. In Dicey’s case, this is something of a metaphor, for his reputation as a legal scholar and political thinker has encountered heavy weather in recent times. Dicey, no doubt, would have accepted some of this commentary as fair – as an individual, he was conscious of his own fallibilities and not averse to acts of self-criticism. In some part, however, he has been disadvantaged by a modern inclination to pass judgement according to contemporary facilities, knowledge, and standards, and a tendency to highlight failings in the midst of achievements. As editors, we are in no doubt that the dedication to Dicey as having been ‘honoured and loved as a great teacher and a true friend’ was truly deserved. The honest and earnest dedication with which he approached his life’s work shines from the page, and his two most important works on The Law of the Constitution and The Conflict of Laws live on as testaments to his academic endeavour.

That visit prompted the idea that the centenary of Dicey’s death ought to be marked by an event in Oxford, where he had studied (at Balliol College) and spent much of his life (as a Fellow of Trinity College and, later, as Vinerian Professor of English Law and a Fellow of All Souls College).

This contribution explores A. V. Dicey's political thought from a literary perspective, exploring his strong interest in the poetry and political ideals of William Wordsworth. We will approach Wordsworth through Dicey, and Dicey through Wordsworth, in order to address two questions: first, why did Dicey turn to Wordsworth and what core political principles lie at the heart of that attraction? Second, why poetry? What can a poet do with politics that others cannot?

Dicey himself draws links between two periods and corresponding works of Wordsworth that, for him, embody his political ideals as they evolve over time:

Taking our lead from Dicey, then, this contribution will primarily move across and between Wordsworth's ‘Sonnets to Liberty’ of 1802 (published 1807) and his prose essay on ‘The Convention of Cintra’ (1809).

We can begin with one of Wordsworth's most well-known sonnets. In 1802, a brief break in the Napoleonic Wars created by the Peace of Amiens allowed Wordsworth to return to France and to reflect upon his own nation from across the channel.

If you ask anyone who has studied UK constitutional law to name two key fundamental principles of the UK constitution, it is likely that both parliamentary sovereignty and the rule of law will feature in their reply. If pressed for more information, they are equally likely to talk to you about Dicey's account of both of these principles. These accounts continue to shape UK scholarship. Our analysis of events is through the lens of their impact on parliamentary sovereignty and the rule of law. Constitutional change is assessed in terms of whether it is strengthening or weakening the relative importance of these principles.

This contribution is not designed to argue that these two principles are unimportant. Rather, it focuses on other aspects of Dicey's work that have not had the same impact – either because we have forgotten them, or because it appears at first glance that Dicey forgot to discuss them. The first is Dicey's criticism of the development of the party system and how, without check, this may lead to governments instituting and implementing constitutional change made by Parliament that is contrary to the wishes of the electorate. The second is the separation of powers, barely mentioned by Dicey and only latent in his work.

I will argue that failing to take account of these forgotten elements not only undermines the accuracy of our assessment of the UK constitution, but may also threaten the delicate balance of powers needed to provide a normative justification for the UK's predominantly political constitution.