Dicey was not diceyan

Cambridge Law Journal

Volumn 62, Issue 2, 2003, Pages 474-494

  Weill, Rivka ^a  

^a YALE UNIVERSITY   (United States)

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EID: 85012469516     PISSN: 00081973     EISSN: 14692139     Source Type: Journal    
DOI: 10.1017/S000819730300638X     Document Type: Article

References (74)

1. Vernon Bogdanor, “Western Europe” in David Butler and Austin Ranney (eds.), Referendums Around the World: The Growing Use of Direct Democracy (Basingstoke 1994) 24, 34.
2. Richard A. Cosgrove, The Rule of Law: Albert Venn Dicey, Victorian Jurist (London 1980) pp. 105-110, 247. For a similar view, see Lord Bingham of Cornhill, “Dicey Revisited” [2002] Public Law. 39.
3. “People”, with a capital letter, describes the instances in which the people mobilise, deliberate and pronounce their deliberate and sustained opinion on constitutional change. This happens at times when the people engage in public life with the seriousness they usually accord the most important decisions of their private lives. In all other times, we refer to “the people” without a capital. We follow here the work of Professor Bruce Ackerman of Yale Law School. See Bruce Ackerman, We the People: Foundations (Cambridge, Mass. 1991), vol. I; Bruce Ackerman, We the People: Transformations (Cambridge, Mass. 1998), vol. II.
4. This interpretation was based on Dicey's recurrent emphasis that in the British system the People's will ultimately and in the long run prevails. A.V. Dicey, Introduction to the Study of the Law of the Constitution (8th edn., London 1915) pp. 28-29, 285, 287 [hereinafter cited as Dicey, Constitution]. We rely on this edition, since it was the last that Dicey himself edited.
5. Ackerman has coined the terms monism and dualism to describe constitutional systems that are based on parliamentary vs. popular sovereignty respectively. In a nutshell, a monist system is one that does not distinguish between constitutional and regular law, but rather accords the legislature full authority to legislate on all matters. A dualist system is one that distinguishes between the making of constitutional and regular law, by demanding the People's decision on constitutional issues while leaving the legislature to decide all other law. Ackerman, note 3 above.
6. Cosgrove, note 2 above, p. 161.
7. Ackerman has coined the terms monism and dualism to describe constitutional systems that are based on parliamentary vs. popular sovereignty respectively.
8. Ackerman has coined the terms monism and dualism to describe constitutional systems that are based on parliamentary vs. popular sovereignty respectively. Dicey expressed similar views in other writings as well. In March 1894, he wrote
9. The sovereignty of Parliament, I may be reminded, excludes any distinction between the articles of the Constitution and ordinary laws. The sovereignty of Parliament, I reply, is a very different thing from the supremacy of the House of Commons, and influences, I add, which have lost their power have, until recent times, in practice though not in law, maintained a distinction between laws which affect the Constitution and laws which deal with matters of everyday life. A.V. Dicey “The Referendum” (1894) 23 National Review 65, 66 [hereinafter cited as Dicey, “The Referendum”].
10. For a full account of the dualist theory, see Ackerman, note 3 above.
11. For a discussion of the mandate theory, see e.g. G.H.L. Le May, The Victorian Constitution (London 1979) pp. 133-145; Cecil S. Emden, The People and the Constitution (2nd edn., Oxford 1956) pp. 212-218; Corinne C. Weston, “Salisbury and the Lords, 1868-1895” (1982) 25 Historical Journal 103.
12. For a full description of the dualist Britain between 1832 and 1911, see Rivka Weill, The Anglo-american Constitutional Model: Why The British and American Constitutional Systems Are Not As Different As Most Think (Doctoral Dissertation, Yale Law School, 2002) (unpublished).
13. “Democracy in Switzerland” (1890) 171 Edinburgh Review 113, 141 (unsigned) [hereinafter cited as Dicey, “Democracy”].
14. E.g., Dicey, “The Referendum”, note 8 above, p. 69. See also note 47 below. Dicey even wrote that a statute revising the constitution is typically called in Britain a Reform Bill. Dicey, “Democracy”, note 13 above, p. 135.
15. A.V. Dicey, “Ought The Referendum to be Introduced into England?” (1890) 57 Contemporary Review 489, 494 [hereinafter cited as Dicey, “Referendum Introduced”].
16. A.V. Dicey, “The Referendum and its Critics” (1910) 212 Quarterly Review 538, 546 [hereinafter cited as Dicey, “Referendum Critics”].
17. Bagehot wrote, “Just as the knowledge that his men can strike makes a master yield in order that they may not strike, so the knowledge that their House could be swamped at the will of the king-at the will of the people-made the Lords yield to the people”. Walter Bagehot, The English Constitution (1867) (Reprinted with an Introduction by R.H.S. Crossman, London 1963), p. 128. For the history of the passage of the Great Reform Act, see J.R.M. Butler, The Passing of the Great Reform Bill (London 1964).
18. Dicey, Constitution, note 4 above, p. 312. Not all contemporaries shared his views. Hearn, for example, wrote that the creation of peers to coerce a certain policy is “not only unconstitutional but is absolutely unlawful”. William E. Hearn, The Government of England (Melbourne 1867) p. 177. However, even he acknowledged that the Crown's intervention in the business of Parliament was justified when three conditions were met: First, the Crown intervened in order to reconcile the two Houses. Second, its intervention was directed towards the House of Lords, which was unelected. Thus, no other method of coercion, such as dissolution, could be applied against it. Third, this method was used only in the last resort. For a full account of the dualist theory., pp. 177-179.
19. Dicey, “Referendum Critics”, note 16 above, p. 554.
20. Dicey, “The Parliament Act”, note 12 above, p. 85.
21. Dicey, “The Parliament Act”, note 12 above, p. 86.
22. Vernon Bogdanor, Devolution in the United Kingdom (Oxford 1999), p. 19 [hereinafter cited as Bogdanor, Devolution].
23. Dicey, “Referendum Introduced”, note 15 above, pp. 494, 506.
24. Bogdanor, Devolution, note 23 above, p. 19.
25. The events of those years [1893-1895] show that in the matter of Home Rule the deliberate will of the country was expressed, not by the representative and elected House of Commons, but by the hereditary and unelected House of Peers. An assembly freely chosen by the electors may fail then to represent the nation. This is the truth which was first forced home upon Englishmen in 1895. Dicey, “Referendum Critics”, note 16 above, p. 541.
26. Dicey, Constitution, note 4 above, p. 28.
27. For a full account of the dualist theory., p. 28 n. 51.
28. For a full account of the dualist theory., p. 291.
29. For a full account of the dualist theory., pp. 286-287.
30. Cosgrove, note 2 above, p. 107 (quoting Dicey to Strachey, 29 January 1894, Strachey Papers).
31. A.V. Dicey, “The Paralysis of the Constitution” (1905) 88 Contemporary Review 305, 311.
32. Dicey, “Referendum Introduced”, note 15 above, p. 506.
33. A.V. Dicey, England's Case Against Home Rule (1886) (Richmond 1973); A.V. Dicey, Letters On Unionist Delusions (London 1887); Dicey, A Leap in the Dark, note 12 above A.V. Dicey, A Fool's Paradise (London 1913).
34. Cosgrove, note 2 above, p. 106 (quoting Dicey to Salisbury, 11 November 1892, Salisbury Papers).
35. For a full account of the dualist theory.
36. See A.V. Dicey, “Will the Form of Parliamentary Government be Permanent?” (1899) 13 Harv. L. Rev. 67; Dicey, “Referendum Introduced”, note 15 above, pp. 505-506.
37. Dicey, “Referendum Critics”, note 16 above, p. 543.
38. In 1881, during Gladstone's ministry, the House adopted the closure rule to check obstructive speaking (filibustering) by members opposed to the passage of legislation. It enabled the Commons to close debate and move for a vote on the bill under discussion. See Edward Hughes, “The Changes in Parliamentary Procedure, 1880-1882” in R. Pares and A.J.P. Taylor (eds.), Essays Presented to Sir Lewis Namier (London 1956), p. 289; E. Porritt, “Amendments in House of Commons Procedure Since 1881; The Aims and Tendencies of the Newer Standing Orders” (1908) 2 Am. Pol. Sci. Rev. 515. The Guillotine rules adopted in 1887 allow restriction of the time allocated for the discussion of a bill in the Commons by setting the dates and times at which the specified provisions of the bill must be voted upon. It is also known as closure by instalments or closure by compartment. For a full account of the dualist theory., pp. 524-525.
39. Dicey, “The Referendum”, note 8 above, p. 68.
40. Dicey supported the passage of reform in 1867. He believed that Parliament should represent the people rather than the three classes of British society, Royalty, Aristocracy and Commoners. AV Dicey, “The Balance of Classes” in Essays on Reform (London 1867), p. 67. But he lamented the growth of party government, which resulted.
41. E.g., Dicey, “The Parliament Act”, note 12 above, p. 84. Moreover, Dicey recognised the logical nexus between enfranchisement and the referendum. The same considerations that supported the extension of the franchise supported granting the People the veto power by way of referendum. Dicey, “Democracy”, note 13 above, p. 141.
42. See e.g., Roy Jenkins, Mr Balfour's Poodle (London 1954), p. 33. On the passage of the Third Reform Act, see William A. Hayes, The Background and Passage of the Third Reform Act (New York 1982).
43. Andrew Roberts, Salisbury: Victorian Titan (London 1999), p. 586.
44. Dicey, “Democracy”, note 13 above, pp. 136-137.
45. Dicey, “Referendum Critics”, note 16 above, pp. 556-557; Dicey, “Referendum Introduced”, note 15 above, pp. 502-504.
46. Dicey, “Referendum Introduced”, note 15 above, pp. 497-500.
47. Dicey, Constitution, note 4 above, p. 39.
48. For a full account of the dualist theory., pp. 36-41.
49. Dicey, “The Referendum”, note 8 above, p. 69.
50. Dicey, “Referendum Critics”, note 16 above, p. 554.
51. Cf. Bogdanor, who wrote that Dicey “did not believe that a general election could fulfil the function of a referendum”. Vernon Bogdanor, “Dicey and the Reform of the Constitution”, [1985] Public Law 652, 659.
52. For a full account of the dualist theory., pp. 71-72. Dicey, “Referendum Introduced”, note 15 above, p. 508.
53. For a full account of the dualist theory.
54. For a full account of the dualist theory., p. 498.
55. Dicey, “The Parliament Act”, note 12 above, p. 87 n. 1.
56. Dicey, “Referendum Introduced”, note 15 above, p. 500.
57. For a full account of the dualist theory. See also Dicey, “Democracy”, note 13 above, p. 142.
58. Dicey, “Referendum Critics”, note 16 above, pp. 559-560.
59. Dicey, Constitution, note 4 above, p. cxviii (“The Parliament Act is the last and greatest triumph of party government”.)
60. The Parliament Act 1911 abolished the Lords’ veto on money bills. With one exception, it transformed the Lords’ veto on non-money bills into a suspensory veto capable of imposing a two-year delay of legislation. Only on extension of Parliament's term, did the Lords retain their absolute veto power. The Parliament Act 1949 further reduced the Lords’ suspensory veto power to one-year.
61. Dicey, “The Parliament Act”, note 12 above, p. 81.
62. For a full account of the dualist theory., p. 91.
63. Dicey wrote, “[t]he world knows that one motive at least, for the passing of the Parliament Act by the House of Commons, and forcing it by means of a ministerial misuse of the prerogative through the House of Lords, was that the Act makes it possible to pass a Home Rule Bill.without an appeal to the nation”. Dicey, “The Parliament Act”, note 12 above, p. 89.
64. Cosgrove, note 2 above, pp. 248-249.
65. Dicey, “Appeal”, note 68 above, p. 948. By plebiscite Dicey meant a “sham appeal to a popular vote by which revolutionary and imperial tyranny has fraudulently obtained the moral consecration of the vox populi’. Dicey, “Democracy”, note 13 above, p. 137.
66. Dicey, “Appeal”, note 68 above, pp. 951-954.
67. Cosgrove, note 2 above, p. 250.
68. For a full account of the dualist theory., p. 246.
69. For a full account of the dualist theory.
70. For a full account of the dualist theory., p. 247.
71. See notes 15 and 16 above and accompanying text.
72. See note 20 above and accompanying text.
73. See note 26 above and accompanying text.
74. See Neal Blewett, The Peers, The Parties and the People: the General Elections of 1910 (London 1972), p. 326; Weill, note 11 above.