Initial manifestations of the constitution’s civil administrative spirit
Despite Dicey’s promotion of a legal view of a legal constitution, the polemical reaction it provoked, and Dicey’s presentation of French constitutionalism as fundamentally different from English constitutionalism—indeed, through its droit administratif, ‘fundamentally inconsistent’[101] with the English rule of law—Dicey’s legal starting point for the shifts of the constitution in a civil administrative direction should not be exaggerated.
What might be called civil administrative advantages of the English, and even of the French, constitution, it will be shown, were variously emphasized or acknowledged by Dicey (particularly in his comparative constitutional lectures) in his own treatment of each of the following: constitutional conventions; the executive’s parliamentary character; the constitution’s responsiveness to public opinion; the administrative expertise provided by a permanent and expert civil service; and, even droit administratif.First, one of Dicey’s greatest contributions in Law of the Constitution was to bring constitutional conventions to the forefront of constitutional thought and practice, albeit solely as the object of the political view of the constitution that he differentiated from the legal view and thus marginalized.[102] Important constitutional conventions, however, as standards of political accountability, such as the individual and collective responsibility of ministers to the higher governing authority of Parliament and, through Parliament’s representatives, ultimately to the electorate in civil society, are civil administrative in form.
Secondly, in Law of the Constitution, Dicey explained that the responsibility of ministers to Parliament was dependent on constitutional conventions ‘with which the law has no direct concern’, but, in his comparative constitutional lectures, he did emphasize the ‘vital importance’ to a constitution’s character of whether its executive was parliamentary in that the ‘ability to appoint or dismiss the executive’ was that of Parliament.[103] For Dicey, this ability was the basis of the ‘practical power’ of Parliament, and ‘possession of this right [was] the source of more than half the authority’ that had then accrued to the English House of Commons in reality although not in name.[104] This ability was thus more important as a source of authority than Parliament’s legal sovereignty ‘in the technical sense' of being able to ‘make and repeal any law whatever’.[105] Dicey thus recognized, in other words, that the executive’s political accountability to the higher authority of a representative Parliament—here conceived as a form of civil administrative accountability ultimately to the electorate—was more fundamental to Parliament’s authority than its legal sovereignty.
Thirdly, in part because of its parliamentary executive, Dicey classified the English constitution as a responsive constitution, that is, responsive to public opinion or popular feeling, and described it as exemplary:
The best example in existence and perhaps which has ever existed of a ‘responsive constitution’ is the modern constitution of England. It is... an instrument which responds easily and immediately to the wishes of Englishmen. The Houses of Parliament, and especially the House of Commons, can constitutionally and do in fact give effect to the real or supposed wishes, one might even say, to the whims of the electorate. This is so in matters of legislation, in matters of policy, in matters of administration [where ‘in nothing whatever is the responsiveness... better seen’].[106]
Dicey’s belief in the constitution’s responsiveness is vulnerable to criticism[107] but nonetheless shows the extent to which Dicey regarded Parliament as the vehicle of civil society in its responsiveness to ‘the wishes, feelings, or opinions of the citizens... or rather of those citizens who as a class enjoy full political rights’.[108]
Fourthly, Dicey complemented his emphasis on the responsiveness of the constitution with appreciation of the administrative expertise of experts in a modern state. In comparing modern constitutionalism with the ancient constitutionalism of city-states (originally motivated by the ideal of an ‘intensely active civil life’), Dicey described how in large modern states ‘the art of administration’ had become ‘a highly technical art which must be entrusted to experts’.[109] He pointed out that therefore in a modern state ‘the most that a citizen can do is to take some indirect part, generally a very indirect part indeed, in appointing the persons who, to use modern expressions, are the civil or military servants of the state'.[110] Accordingly, Dicey regarded the longstanding refusal in the United States to create and maintain a permanent, special, and skilled civil service as the outcome of distinct prejudice— a prejudice due to ignorance although born out of democratic feeling.[111]
Fifthly, contradicting or qualifying his well-known rejection of French administrative law as contrary to the English rule of law in Law of the Constitution,[112] Dicey also expressed a high degree of admiration for the remedies of developed French administrative law.
In a to-date unpublished and unnoticed manuscript Note, Dicey elaborated on the remedial merits of French administrative law relative to certain deficiencies in English law and concluded with the following: ‘On the whole it appears to be true that if administrative law is to exist it is seen at its best as French droit administratif[113] The stated remedial reasons for his admiration, it will be shown, were crucial to the second of three later basic shifts of the constitution and particularly of its legal spirit in a civil administrative direction.F.