A.V. Dicey and the Common Law Constitutional Tradition: A Legal Turn of Mind

by Mark D. Walters

Overview

In the common law world, Albert Venn Dicey (1835–1922) is known as the high priest of orthodox constitutional theory, as an ideological and nationalistic positivist. In his analytical coldness, his celebration of sovereign power, and his incessant drive to organize and codify legal rules separate from moral values or political realities, Dicey is an uncanny figure. This book challenges this received view of Dicey. Through a re-examination of his life and his 1885 book Law of the Constitution, the high priest Dicey is defrocked and a more human Dicey steps forward to offer alternative ways of reading his canonical text, who struggled to appreciate law as a form of reasoned discourse that integrates values of legality and authority through methods of ordinary legal interpretation. The result is a unique common law constitutional discourse through which assertions of sovereign power are conditioned by moral aspirations associated with the rule of law.

Product Details

ISBN-13:	9781107028470
Publisher:	Cambridge University Press
Publication date:	11/12/2020
Series:	Cambridge Studies in Constitutional Law
Pages:	350
Product dimensions:	6.30(w) x 9.45(h) x 1.38(d)

About the Author

Mark Walters is Dean and Professor of Law at Queen's University, Ontario. He is recognized as one of Canada's leading scholars in public and constitutional law, legal history and legal theory. He has taught law at the University of Oxford, and he was the F.R. Scott Professor of Public and Constitutional Law at McGill University, Canada. He has held a Sir Neil MacCormick Fellowship at the University of Edinburgh, a Herbert Smith Visitorship at the University of Cambridge, and the H.L.A. Hart Fellowship at the University of Oxford.

Table of Contents

1. Introduction; 2. The biggest legal mind we have; 3. Young Dicey in Oxford; 4. Dicey the common lawyer; 5. Dicey and the art and science of law; 6. Lectures introductory to the law of the constitution; 7. Dicey's legal constitution; 8. The law of parliamentary sovereignty; 9. The supremacy of ordinary law; 10. Sovereignty and the spirit of legality; 11. Dicey's administrative law blind spot; 12. Towards a discursive legalism; 13 The constitution in the common law tradition; Appendix; Bibliography; Index.

Editorial Reviews

‘In this highly engaging and elegantly written book, Mark Walters skilfully combines biography, history, constitutional law, jurisprudence and moral theory to give us a compelling account of Dicey and his thinking. He presents a major challenge to the orthodox picture of Dicey as a legal positivist writing in the shadow of John Austin. We find in these pages a more complex and sophisticated thinker, developing an understanding of law as a discourse of reason, closer to the work of his friends Henry Sidgwick and T. H. Green. Anyone interested in the nature of common law constitutionalism, as a distinctive account of the legal order, will be gripped by this very fine book. It enables us to see why, despite the frequently dismissive criticism, Dicey’s work has rightly remained so interesting and influential. We can grasp the profound implications for human freedom of constitutional law being, in its common law conception, ‘ordinary’ law.’ T. R. S. Allan, Professor of Jurisprudence and Public Law, University of Cambridge

‘The book is of immense importance for anyone with an interest in the Common Law or jurisprudence, especially within a United Kingdom context.’ Javier García Oliva, Law and Justice

From the Publisher