Transforming point of view and the spirit of the constitution
The potential to transform Dicey’s legal view of a legal constitution is threefold. First, Dicey’s promotion of the legal view was at a time when the study of constitutional law in its own right—as distinct from constitutional history and political thought—was not well established.
Dicey was lecturing and writing shortly after the Oxford Law School had been institutionally detached from its former School of Law and Modern History,31 that is, at a time when he had reason to distinguish the legal view from other views so as to consolidate the study of constitutional law in its own right as distinct from other disciplines. Dicey was clearly preoccupied with the teaching of law at university rather than in practice, and elaborated on his preoccupation in his inaugural lecture ‘Can English Law be Taught at the Universities?’32 In outlining his legal subject at the start of Law of the Constitution, he was staking out his teaching terrain. His purpose has long since lost relevance, in part through his success and that of other pioneering teachers of law at the universities. For decades, the situation has been quite different from that which Dicey faced. Constitutional law as a core subject is well established, as are law faculties or law schools and the teaching of law typically at university. Our law students now need at university, arguably, the opposite of a narrow, strictly legal, focus so as to enrich their legal understanding and later careers with insight intoAdministrative Law (London: Pitman, 1952). See, generally, M Loughlin, Public Law and Political Theory (Oxford: Oxford University Press, 1992), 165—8, 197—201; Foley, Politics of the Constitution, n 1 above, ch 2, especially 30ff; G Gee, ‘The Political Constitutionalism of JAG Griffith’ 28 LS (2008) 20.
30 See, eg., Foley, Politics of the Consbibubion, n 1 above; R Bellamy, Political Consbibubionulism: A Republican Defence of the Constitutionality of Democracy (Cambridge: Cambridge University Press, 2007); ATomkins, Public Law (Oxford:Oxford University Press, 2003); ATomkins, Our Republican Constitution (Oxford: Hart, 2005).
See generally G Gee and G C N Webber, ‘What is a Political Constitution?’ 30 OJLS (2010) 273; J W F Allison, The English Historical Constitution: Continuity, Change andEuropean Effects (Cambridge:Cambridge University Press, 2007),33ff.31 F H Lawson, The Oxford Law School, 1850—1965 (Oxford: Oxford University Press, 1968), chs 1—3; RW Blackburn, ‘Dicey and the Teaching of Public Law’ PL [1985] 679.
32 London: Macmillan, 1883; republished in The Oxford Edition of Dicey i, The Law of the Constitution, Appl. subjects, such as history, philosophy, and political theory, which are readily taught and learnt at university.
Secondly, the views of the constitution—legal, historical, and political—were expressly only views in Dicey's Law of the Constitution. Although, for legal educational reasons, Dicey declared[97] the exclusivity of the legal view in the study of constitutional law, the legal, historical, and political views were, as views, not mutually exclusive and have the potential[98] to be fully complementary.
Thirdly, the object of the legal view—a supposedly legal constitution—was legal because it had, according to Dicey, a legal spirit understood by him as the subjective side of the working of its institutions. The constitution was legal in the sense meant by Dicey only because he saw it as so viewed by the people through their real or presumed love of legal forms, fictions, and precedents.[99] If their presumed views were in fact more complex or became more complex, the constitution was not, or ceased to be, simply legal with legal accountability simply central.
That the supposed legal, military, and civil administrative views of entire peoples, which Dicey used to distinguish English, Prussian, and French constitutionalism, were in fact more complex, and became increasingly so, is now to be expected. Dicey's stark monolithic national contrast of the constitutionalism of England with that of nineteenth-century Prussia and that of France now appears oversimplified and overstated.
Suspect and unconvincing, it would seem to illustrate a late-nineteenth or early-twentieth century nationalist outlook and is contradicted by the extensive interaction of legal systems recognized in more recent comparative scholarship. If so, the scope of the change and its implications need to be considered.To determine quite how much has changed through developments in the century after Dicey penned his lectures[100] and to suggest implications for the legal/polit- ical dichotomy in common assumptions about the constitution and accountability under it, the inverse of the three spirits Dicey attributed to English, Prussian, and French constitutionalism respectively will be considered. In issue here is therefore the relative significance with which all three spirits—the legal, the military, and the civil administrative—were together manifest in English legal and constitutional thought during the twentieth century, whether by way of domestic development or external influence/impact. What will be offered below is an overview of what I will suggest is a considerably more complex and changing constitutional terrain than that elaborated upon by Dicey from what was then known and understood in accordance with his own concerns or preoccupations. On the one hand, it is an overview of initial manifestations of the constitution’s civil administrative spirit and of further shifts of the constitution and its legal spirit in a civil administrative direction. On the other hand, it is an overview of legal manifestations of a military spirit in administrative cases at a time of world war and well beyond its aftermath.
E.