Dicey—legal or political views of the constitution
Dicey's view of the English constitution was doubly legal. First, in Law of the Constitution, he differentiated the legal view from the political view, which was pre-eminently that of the classic political theorist Walter Bagehot.[91] For Dicey, solely the law of the constitution was to be the subject of constitutional legal study.[92] Secondly, in his comparative constitutional lectures, he characterized the very spirit of the constitution as legal.
In short, Dicey promoted a legal perspective on a constitution with a legal spirit. From that perspective, legal accountability of individuals and officials alike before the ordinary courts enjoyed constitutional centrality.[93] Political accountability through the working of conventions, he clearly envisaged[94]but juxtaposed and thus marginalized as the object of the differentiated political view of political theorists.By differentiating and promoting the legal view of the constitution, Dicey marginalized the political view. At least from a political perspective, he left political accountability and political understandings of the constitution in need of polemical, even dichotomous, advocacy, which they duly received. Leading reactions were that of W Ivor Jennings in his book The Law and the Constitution,[95] which was pointedly entitled to differ from Dicey's The Law of the Constitution, and that of J A G Griffith in his famous Chorley Lecture ‘The Political Constitution'.[96] The advocacy of political accountability and political constitutionalism has been maintained by others30 in opposition to the dominant or common legal perspective on a legal constitution inherited from Dicey.
By differentiating and marginalizing the political view in Law of the Constitution and then identifying the constitution’s spirit as legal in his comparative constitutional lectures, Dicey not only expressed but also popularized and entrenched a legal/ political dichotomy, which has long been maintained by the many he influenced or provoked. Dicey’s legal view of a legally-spirited constitution, however, was, I will argue, elaborated on for a purpose at a time and in a way such as to disclose the means with which to help address the dichotomy in Dicey’s own terms.
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