This chapter takes as its starting point the features identified as critical in understanding the process of educational reform, set out by McLaughlin and Ruby in their review of the case studies in Implementing Educational Reform: Cases and Challenges. These are: the historical and political context; models of implementation; timescale; internal and external actors; communication and discourse. It examines the relationship between structure and culture in promoting successful change in educational systems focusing particularly on the role of external actors in shaping the Scottish Government’s management of change and the tension between the broad curricular intentions and the narrow conception of assessment in upper secondary school. It also examines the extent to which governance reform is capable of enabling sustained cultural change; and the best means of encouraging teachers to develop a sense of agency, not simply the implementers of policy devised by external ‘experts’. It illustrates how educational reform in Scotland is complex, contested territory in which the policy intentions of government are interpreted and mediated through bureaucratic agencies, professional networks and an expanding field of interest and pressure groups.

With the publication of his lectures on constitutional law in 1885, A. V. Dicey introduced an account of the rule of law that would have, for better or worse, a powerful influence. His book, Law of the Constitution, is an extended essay on how the law of the English or British constitution is the expression of two basic principles, the rule of law and parliamentary sovereignty. These ideas were not new to English legal writing, but Dicey succeeded with impressive literary flourish to elevate them to the status of the organizing principles of the constitution.

In Law of the Constitution, A. V. Dicey identified two legal principles as the animating principles of the British constitution: parliamentary sovereignty and the rule of law. The juxtaposition of these two principles exposed central themes at the heart of the ideal of constitutionalism and constitutional government within the common law tradition. Early in his book, Dicey stated that parliamentary sovereignty is ‘the dominant characteristic of our political institutions’.1 Yet it would be clear by the end of the book that Dicey saw the two principles as equal in their importance – that supreme legislative power is valued insofar as the supremacy of law is valued. ‘Th[e] rule of law’, Dicey concluded, ‘is of the very essence of English institutions’, and ‘[i]f the sovereignty of Parliament gives the form, the supremacy of the law of the land determines the substance of our constitution’.2

In the dozen or so years between his trip to America with Bryce and his appointment to a chair at Oxford, Dicey published prodigiously. By the early 1880s, he was a regular political commentator for the American periodical The Nation.1 He wrote on law and legal issues, sometimes directly and at other times in the course broader discussions of politics, political morality or history. His legal writings were eclectic, addressing education,2 history,3 institutions4 and theory.5 Dicey also wrote dense doctrinal material specifically for lawyers.6

Judges began citing A. V. Dicey’s Law of the Constitution during his lifetime,1 and judges throughout the common law world continue to cite Dicey’s book today.2 Law of the Constitution has been described as ‘one of the great law books of all time’.3 Even those critical of Dicey do not deny the powerful impact of his book. As Felix Frankfurter wrote, ‘Few law books in modern times have had an influence comparable to that produced by the brilliant obfuscation of Dicey’s The Law of the Constitution’.4 Leaving his claim about obfuscation aside, Frankfurter’s statement is as true today as it was when he made it over eighty years ago.

In the common law tradition, the idea of the constitution is a paradox: the laws that are supposed to be foundational for the ordinary laws that govern day-to-day life turn out to be an integral part of those same ordinary laws. The constitution is part of the general law of the land. This is not so in other legal traditions. In France, it has been said, the constitution is paraded in full splendour before the ranks of ordinary law; its commands are the voice of an extraordinary sovereign to be obeyed and never questioned. In the common law tradition, however, constitutional laws are dispersed amongst the ranks, their effect manifested as a powerful centripetal force from within. The constitution is not a special phenomenon isolated from the rest, but something to be questioned, debated, discussed, and developed just as any other law is – through ordinary legal discourse. This conception of the constitution is especially evident in the United Kingdom today, but it remains relevant in modified ways in other common law jurisdictions, even those that have adopted entrenched constitutional documents. Is there any value to understanding constitutional law, or indeed the general ideal of constitutionalism, in this common law way?

Writing to Oliver Wendell Holmes Jr, in 1880, A. V. Dicey commented on the differences between legal, historical and philosophical perspectives on law, and then stated: ‘I should also like sometime or other to write an article on what may be termed the difference between the new & the old school of legal literature but I have gone far too near pouring out an article on your head & ought to stop’.1 If only Dicey had kept going. What were the differences between the new and old schools of legal literature? What was the role of the legal writer? What was the relationship between different styles of legal literature and different schools of legal theory? These were perennial questions for Dicey.

Albert Venn Dicey lived from 1835 to 1922. He was a student at Oxford in the late 1850s and held a college fellowship at Oxford from 1860 until his marriage to Elinor Bonham Carter in 1872. He was a barrister who served as counsel to the Inland Revenue before returning to Oxford as the Vinerian Professor of English Law in 1882. In addition to publishing works on constitutional law and conflict of laws, he advocated a series of political positions that became increasingly unpopular during his lifetime, arguing against female suffrage, Irish home rule, and the rise of the modern welfare state.1 Dicey could be politically dogmatic and uncompromising. His colleague at Oxford, the Professor of Jurisprudence Sir Frederick Pollock, observed that Dicey and his lifelong friend, James Bryce, who would serve as cabinet minister and ambassador to the United States, were ‘university Liberals together’, but Dicey’s ideas ‘remained fixed on all material points while Bryce’s mind was open to the last’.2 Dicey conceded that he never ceased to be a ‘Mid-Victorian’.3

In his capacity as the Vinerian Professor of English Law at Oxford, Albert Venn Dicey famously denied there was such a thing as administrative law in England. What is not generally known is that Dicey in his capacity as counsel to the Inland Revenue argued some of the leading administrative law cases of the late nineteenth century and was thus one of the most prominent administrative lawyers at the bar during his day. Dicey had a number of intellectual blind spots. Administrative law was the biggest one.1

At the age of nineteen, Dicey went up to Oxford to read Classics. Due to his frail physical condition, he delayed matriculation at his college, Balliol, until Easter of 1854. Most students commenced their studies in the autumn and so Dicey matriculated with only two or three other students. One of them, as it happens, was Thomas Erskine Holland, who would become the Chichele Professor of International Law at Oxford and a lifelong friend.1