The spirit of a constitution
In one of his early comparative constitutional lectures, Dicey cited Montesquieu's famous Spirit of the Laws but distinguished the meaning he attributed to the term ‘spirit' from Montesquieu's meaning.[71] Montesquieu had there made an initial concession to the natural lawyers by declaring that ‘[l]aw in general is human reason insofar as it governs all the peoples of the earth'[72] but had immediately particularized that reason—‘the political and civil laws of each nation should be only the particular cases to which human reason is applied'.[73] According to Montesquieu, those laws should be related to the various factors affecting a people, such as ‘the nature and the principle of the government', ‘the climate, be it freezing, torrid, or temperate', ‘the properties of the terrain', and ‘the way of life of the peoples', so as to give rise to relations all of which together form what Montesquieu had called ‘the spirit of the laws'.[74]
Dicey's notion of a constitution's spirit in his comparative constitutional lectures was expressly differentiated from Montesquieu's.
For Dicey, the term ‘spirit' did not mean ‘the end or final cause for which a constitution, or law, or institutions generally exist or may be supposed to exist',[75] which is the meaning he wrongly supposed Montesquieu had attributed to it.[76] Nor did it mean ‘something very near to the working of a constitution'.[77] Rather, with the term ‘spirit of a constitution', Dicey referred ‘to the way in which the persons of a given time look upon their institutions, the way in which they expect them to work or assume that they will work'.[78] In short, for Dicey, the spirit of institutions was ‘the subjective side of their working'.[79] He admitted that the term ‘spirit' was ‘an extremely vague one' but stressed that it was one which conveyed ‘a notion as indefinite as it is important'.[80]Dicey's notion of a constitution's spirit might now seem quaintly metaphysical but was similar, at least in function, to common modern notions of legal/consti- tutional culture.
These notions remain current however problematic[81] many of their uses—whether assuming uniformity and continuity, pretending to explain but invoking a notion of culture that is itself in need of explanation, or suggesting an environment of attitudes that may be most influential when unnoticed and barely open to enquiry. Their continuing currency is reason to reconsider Dicey's very early attempts to articulate and make sense of something similar.Dicey identified the spirit of the institutions of the English constitution, commonly looked upon ‘from a legal point of view', as legal and contrasted it, on the one hand, with the military spirit of the institutions of Prussian constitutionalism, looked upon ‘from the point of view of soldiers' and, on the other, with the civil administrative spirit of the institutions of French constitutionalism.[82] For Dicey, the English constitution was viewed from the perspective of a people with ‘a legal turn of mind', ‘imbued with legalism and who import into their political arrangements that love of precedent and acquiescence in fictions which is proper to the law courts.'[83] Through ‘a love for forms and precedents', the English constitution is characterized by formal, often fictitious, continuities.[84] Dicey characterized the Prussian constitutionalism in the reign of King Wilhelm I by its unified, hierarchical, and disciplined administrative corps of soldier citizens who, as citizens, were subject to compulsory military service, and were headed by the King as a real, militarily-trained, Commander-in-Chief to whom they were subservient by oath of allegiance.[85] In contrast, Dicey characterized French constitutionalism by its ‘administration carried on by civilians in a civil spirit and not an administration modelled on the principles of an army'.[86] He distinguished it by reference to the civil, ‘authoritative and centralized' character of its administration and the width of that administration's executive, legislative, and judicial powers, through the exercise of the last of which administrative courts developed a droit administratif[87]
B.