Review: The Legal Boundaries of Liberty: Dicey, Liberalism and Legal Science

Author(s): David Sugarman

Reviewed work(s):
The Rule of Law: Albert Venn Dicey, Victorian Jurist by Richard A. Cosgrove
Source: The Modern Law Review, Vol. 46, No. 1 (Jan., 1983), pp. 102-111
Published by: Blackwell Publishing on behalf of the Modern Law Review
Stable URL: http://www.jstor.org/stable/1095762
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 REVIEWS
THE LEGAL BOUNDARIES OF LIBERTY:
DICEY, LIBERALISM AND LEGAL SCIENCE
THE RULE OF LAW: ALBERT VENN DICEY, VICTORIANJURIST. By
RICHARDA. COSGROVE.[London: Macmillan. 1980. xv, 319 pp.
?15-00.]
I
VENNDICEY(1835-1922) carvedout a formidablenichefor himselfboth as an
ALBERT
academiclawyerand as a publicfigure.HaroldLaskiwrote that ".... Dicey'sdeath
removes quite the most considerable figure in English jurisprudencesince
Maitland.... Few OxfordteacherssinceT. H. Greenhave exercisedan influenceso
wide as he." 1 Dicey's Law and Opinion 2 remains a focal point in the continuing
debate surroundingthe changing characterof law and state in nineteenthcentury
England. His Law and the Constitution,3 in which he popularised the phrase " the
Rule of Law," established him as the leading constitutional authority of late Victorian
and Edwardian England. And his Conflict of Laws 4 has exercised an enormous
influence upon this branch of modern law.
Dicey also played an important role in the renaissance of English legal education,
whichbeganin the 1850s.He revivedthe prestigeof the VinerianChairand helpedto
raisethe standardsof legaleducation.The academiclawyerbecamean acknowledged
professionalduring his lifetime; and Dicey played a leading role in championing
the teachingof law at universities,as distinctfromthe Inns of Court.5He participated
in the activitiesof the Legal EducationAssociation,assistedBrycein the foundingof
the law schools at Manchesterand Liverpool and along with others at Oxford,
established the Law Quarterly Review.
Professor Richard Cosgrove has now written the first full-scale biography of
Dicey. Employing materials hitherto unused-notably Dicey's abundent corre-
spondenceand the notebookhe beganin 1891on Ireland-as well as his voluminous
writings,Cosgrove has produced an elegantly written study which does much to
illuminateDicey's life. CosgroveportraysDicey as someonewho neverovercamehis
deep disappointmentat having failed to establish a judicial or political career.
His period at the bar was a barrenone and it was with a sense of failure that he
acceptedthe VinerianChairin law at Oxfordin 1882.In providingus with the most
comprehensiveexploration to date of Dicey's obsession with Ireland, Cosgrove
revealsthat the Irish question dwarfedDicey's other activitiesafter 1886. " To the
IrishQuestionDicey returnedagainand againas a moth to the flame."6 He wrotesix
books and numerousarticleson the subject.Thus, despitehis strongcommitmentto
academiclaw, politicsremainedhis secularvocation; the law neversupersededit in
importanceand interest.Cosgrove argues that the Home Rule controversyshook
Dicey's faith in the efficacyof democracy.Dogmaticallyattachedto the politics of
his youth, he spenthis lateryearsattackingthe phantomsof socialism.
II
Cosgrove's biographyis primarilyan intellectualportraitand it is ultimatelyas a
workof intellectualhistorythat his book mustbejudged.His real claim to originality
1 TheNation and Athenaeum,Vol. 31 (April 15, 1922), p. 77.
2 Lectures on the Relation Between Law and Public Opinion in England during the
NineteenthCentury(1905, 2nd ed., 1914).
3 Introductionto the Study of the Law of the Constitution(1885).
4 A Digest of theLaw of EnglandwithReferenceto the Conflictof Laws (1896).
5 See, for example, his inaugurallecture, CanEnglishLaw Be TaughtAt The Universities?
(1883) and " Legal Education," Macmillans,Vol. 25, (December 1871), pp. 115-127.
6 Cosgrove, p. 227.
102
Jan. 1983] REVIEWS 103

is the way he clarifieswhy Dicey's work,in law and politics,took the form it did. It is
this apparatusof explanationand the conclusionsderivedtherefromthat I want to
discuss.
The core of Cosgrove'sbook is that threefactorsexplainmuch of Dicey's life and
work. First, Dicey's early and unwaveringcommitmentto economic liberalismand
the BritishEmpire.Secondly,by inclinationand belief Dicey recognisedno middle
ground, only categories of black and white, and therefore succumbed to over-
simplisticcategorisations.Thirdly,this penchantfor neat categorieswas reinforced
by his commitmentto an Austinian conception of law and science. The crux of
Cosgrove'sthesis is that, given these factors,the characterand limitationsof Dicey's
politics and writings were foregone conclusions. From this perspective, Dicey
emergesas a rigid, superficialand relativelyunoriginalthinker.Cosgroveconcludes
that whilst the determinantswhich shapedDicey's work impoverishedhis historical
and politicalwork, the3proved positivevirtuesin his purelylegal enterprises!From
this perspective,Cosgroverates Dicey's Conflictof Lawsas the greatestof his books
whereas Law of the Constitution" ... . must rank slightly behind, because it never
synthesized its field as Conflicts had done ... Law and Opinion must be rated much
lower, for it has misledhistoriansof VictorianEnglandever since its publication."7
Historiansshould no longer take it seriously, advises Cosgrove. It is "a work of
imagination" rather than of historical scholarship.8Cosgrove's message is clear:
Dicey was by inclination and expertise a lawyer; when lured into the realms of
historyor politics he tended to waste his talents. To emphasisethis point, Cosgrove
alludesto Cecil Fifoot's view that Sir FrederickPollock " was for sixty years at the
heart of the law of England."9 The " tragedy" for Dicey, we are told, was that he
mightwell haveclaimedthat positionbut for his extra-legalactivities.
III
The historyof law is still largelywrittenby lawyers,and their professionalconcerns
all too easily inhibita properlyhistoricalreconstructionof the past.10Lawyers'legal
history tends ". . . to exhaust itself in the insular details of the legal system." 1
The quest for ancestorstends to reducelegal history to its lowest form, genealogy,
and the chief explanatoryconcept is " begat" (or " influenced,"which in practice
often amounts to much the same thing).12 "Moreover, since only a very recent
generationis assumedto have really ' achieved' . . . [law],the whole affairbecomes
like a retrospectiveprizegivingin which no candidatebefore a certain date can be
more than proxime accessit. So the dominant mode is still for a whiggish or
triumphalistaccount of the past to be based on a parochialpreoccupationwith the
currentcontroversiesof the profession."13 This is not to say that all lawyers'legal
history is marredby a treatmentof " legal " phenomenathat is both Whiggishand
relatively autonomous of society. Nonetheless, these undoubted tendencies are
especiallypronouncedin those legal historieswhich constitutea substantialslice of
the moretraditionaltexts on EnglishLegalSystemand the historicalintroductionsto
student law texts.'4 Their importanceis not to be underestimatedas they usually
constitutethe law students'only realacquaintancewith legalhistory.
What, then, should an intellectualhistory of law, lawyersand jurists seek to do ?
"One hopes that ... [it] will try to reconstruct... [their]conceptualworld .. ., to
7 Ibid.at pp. 298-299.
8 Ibid. at p. 192.
9 Ibid. at p. 299.
10 See M. J. Horwitz," The Conservative
Traditionin the Writingof AmericanLegal
History " (1973) 7 AmericanJournal of Legal History 275 on the ideological elements in
lawyers' legal history.
11 L. M. Friedman (book review) (1970) 14 AmericanJournalof Legal History 277, 279.
12 See D. J. Boorstin, " Tradition and Method in Legal History " (1941) 54 Harv.L.Rev.
424.
13 S. Collini, "Sociology and Idealism in Britain 1880-1920" (1978) 19 Archives
EuropeenesDe Sociologie 3, 47. Although Collini is discussing the history of sociology his
remarksequally apply to other professional histories. See also T. S. Kuhn, The Structureof
ScientificRevolutions(1970).
14 See Z. Bankowski and G. Mungham, Images of Law (1976), pp. 32-48.
104 THE MODERN LAW REVIEW [Vol. 46
describe their system of thought and the sources they assembled to construct it, and
perhaps also to reveal [their] intellectual context, . . . [their] relation to other con-
15
temporary sources of thought." Such an enterprise is especially valuable given our
generally slight knowledge of the lives and thought of most English judges, lawyers
and jurists. Moreover, such an enterprise would constitute an important complement
to the growing body of social histories of law that have emerged in recent years.16
There are of course real difficulties in attempting to place legal ideas " in context."
Sometimes "context" has been artificially constricted to narrow economic
desiderata, thereby excluding a variety of other important social phenomena (for
example, language systems, patriarchy, ideas and beliefs). In such reductionist
interpretations of " context," the individual tends to be treated as " . . . simply a
blank page upon which each successive stage of capitalism has successfully imposed
its imprint." 17 As Fifoot warned, " Law, no more than any other human creation, is
the automatic result of natural forces or intellectual movements." 18 In short, the
effort to contextualise brings to the surface the puzzle of human agency. It also
requires us to excavate a much wider range of subject-matter and source materials
than that usually imbibed by lawyers' legal history. One way of making the intellectual
historian's task less problematic is, perhaps, to concentrate on an individual rather
than on a body of law. Of course, to approach legal history through biography also
has its pitfalls. Too often the legal biography becomes another opportunity to
celebrate uncritically the achievements of law and lawyers, to emphasise individuals
and de-emphasise society and economy. But this need not invariably be the case.
As Christopher Hill's study of Sir Edward Coke testifies, here is a genre that can do
much to illuminate the complex and contradictory relation between law, ideas and
society.19
Judged as a contribution to the intellectual history of law, Cosgrove's biography is
singularly disappointing. Given his credentials as a historian who has shown himself
sensitive to the social and political nuances of legal subject-matter,20 the sense of a
missed opportunity is all the greater. As we shall see, Cosgrove fails both to transcend
the narrow preoccupations and assumptions which ground much lawyers' legal
history; and to avoid reductionist views of context and causation.

IV
Most of the problems of interpretation in this book stem from four sources:
Cosgrove's narrowly drawn and shadowy treatment of the context within which Dicey
lived and worked; his present-mindedness; his failure to question lawyers' categories
and values; and his reductionist approach to the diverse and complex forces to which
Dicey responded. I shall deal with each of these points in turn.
During his tenure at Oxford, Dicey, together with colleagues such as Maine,
Bryce, Pollock, Holland and Anson, helped to lay the foundations of modern legal
science and scholarship in England and the United States. Yet his relationship with
15 R. W. Gordon, (book review), (1981) 94 Harv.L.Rev. 903, 908-910. I have found
Professor Gordon's essay very helpful in the writing of this review.
16 For surveys of this work see, D. Sugarman. " Theory and Practice in Law and
"
History in Law, State and Society (B. Fryer et al. eds., 1981), pp. 70-106; D. Sugarman,
J. N. J. Palmer and G. R. Rubin, " Crime, Law and Authority in Nineteenth Century
"
Britain (1982) I MiddlesexPolytechnicHistoryJournal(Nos. 2 and 3) 28 and D. Sugarman,
" "
Legality, Ideology and the State in England, 1750-1914 in Legality, Ideology and the
State, (D. Sugarmaned., in press).
17 G. S. Jones, " Class Expression Versus Social Control " (1977) History Workshop
(No. 4) 163, 164.
18 C. H. S. Fifoot.
JudgeandJuristin the Reignof Victoria(1959), p. 12.
19 C. Hill Intellectual Origins of the English Revolution (1965), pp. 225-265. Other
somewhat different but successful examples of this genre include L. W. Levy, TheLaw of
the Commonwealthand Chief Justice Shaw (1957); M. White, Social Thoughtin America.
The Revolt Against Formalism(1957); C. H. S. Fifoot, Lord Mansfield (1936) amd supra,
note 18.
20 e.g. R. A. Cosgrove, " The Reception of Analytic Jurisprudence" (1981) 71 Durham
UniversityJournal47.
Jan. 1983] REVIEWS 105
these contemporaries receives very short-shrift by Cosgrove. Now it has been
suggested that Dicey's economic liberalism and commitment to freedom of contract
reflected a strong legal professional tradition; and further, that these doctrines had
much more influence on the legal community than any other organ of state or
profession.21 Unfortunately, Cosgrove does not assist us in assessing the extent to
which Dicey's beliefs and methodologies were common to the generality of the legal
community, let alone other contemporary systems of thought. Cosgrove's descriptive
accounts of the state of politics, society, legal science, history, Austinism and legal
education are either superficial or non-existent.
Cosgrove's present-mindedness is exemplified by the excessive attention devoted to
the many refinements, evaluations and criticisms of Dicey's work since his death.
This " Cook's Tour" may constitute a useful synthesis for students; but there is
nothing new here for those familiar with the literature. The sources utilised by
Dicey are barely explored. The problems, debates and questions that Dicey and his
contemporaries addressed are ill-defined or ignored. The effect is to concentrate
attention on the extent to which modern scholarship has superseded Dicey's work.
Cosgrove's Whiggishness is also evident in his treatment of legal categories and
the nature and purpose of legal scholarship as unproblematic. These are uncritically
appropriated from the black letter tradition of modern legal education. Thus, the
aim of legal scholarship is assumed to be exposition and synthesis; and the highest
marks are awarded for the writing of successful student textbooks.22 Legal scholarship
and science is seen as separate from politics and history. Only in this light do
Cosgrove's rankings of Dicey's work make sense. He seems unaware that a
". .. historian's acceptance of the profession's standards of legal attainment in any
historical period carries its own ideological baggage." 23 Rather than static monoliths,
the nature and scope of legal scholarship and its categories have been and still are
controversial.24 Dicey and his work are very much part of this controversy. What is
the relation between professional and university education ? What kind of work should
be undertaken by legal scholars ? What kind of work merits the name of legal science?
What are the best ways of stimulating scholarship and ideas in university legal
education? These were questions which Dicey expressly addressed in his writings 25
and an understanding of his substantive work would be enhanced if they, and the
views and concerns of his contemporaries, were given due weight. Another example
of Cosgrove's uncritical translation of legal concepts is his argument that the
Austinian approach to legal problems was a seminal influence on Dicey. By this
Cosgrove means that ". . . Dicey appropriated from Austin his basic approach to
legal problems, that is, the attempt to resolve questions of law by stating fundamental
principles derived from thorough analysis of pertinent cases." 26 Yet the principled
nature of law, and the method of ordering legal knowledge into broad principles
derived from and tested by actual decisions was not invented by Austin. The invo-
cation of the underlying principles in argumentation dates back at least to the
writings of Aristotle and thereafter extended to other bodies of learning. The idea that
the law derives from principles originated in Roman law, and in Britain seems to have
been accepted by common lawyers since the late fifteenth century.27 The successive
abstraction and ordering of the underlying principles of science, society and law was
21 p. S. Atiyah, The Rise and Fall of Freedomof Contract(1979), p. 235.
22 Cf. W. L. Twining, " Goodbye to Lewis Eliot: The Academic Lawyer as Scholar"
(1980) 15Journalof the Society of Public Teachersof Law 2.
23 M. J. Howitz, supra,note 10, p. 277.
24 See W. L. Twining, supra,note 22.
25 See A. V. Dicey, supra, note 5. See also " The Teaching of English Law at Harvard"
(1899) 76 ContemporaryReview (November) 742; "The Extension of Law Teaching at
Oxford " (1910) 24 Harv.L.Rev. 1; " The Study of Jurisprudence" (1880) 5 Law Magazine
and Review (August) 382; and " Law-Teaching, Oral and Written " in A Memoir of the
Right HonourableSir WilliamAnson(H. H. Henson ed. 1920), p. 84.
26 Cosgrove, p. 25.
27 H. J. Burman, "The Origin of Western Legal Science " (1977) 90 Harv.L.Rev.894;
A. W. B. Simpson, "The Rise and Fall of the Legal Treatise " (1981) 48 Universityof
ChicagoLaw Review632; P. Stein, Regulaeluris (1966).
106 THE MODERN LAW REVIEW [Vol. 46

part of the common currency of the intellectual revolution of the seventeenth

century.28 And in the eighteenth century, Blackstone made it more plausible than
ever before to view the whole legal system as a derivation from a set of principles or
liberal rights.29 So, whilst systematisation and the derivation of principles from case
law was a facet of Austin's jurisprudence, the method had for centuries formed part
of the common sense of English legal science. In short, Cosgrove conflates Austinian
science with the age-old methods of induction and systematisation. In so doing, the
claims he makes for the crucial influence on Dicey of Austin's method become much
more problematic. As Cosgrove recognises, those other features associated with
Austin's thought such as the separation of law from morality, the attack on natural
law theory and Austin's theory of sovereignty were either ultimately rejected or
substantially modified by Dicey. To reduce Dicey's systematising zeal to the influence
of Austin is, as we shall see, to obscure the larger political purposes that Dicey and
other Victorian jurists sought to achieve through legal science. Of course, that
Dicey and other ".... late nineteenth century jurists talked about [legal] science in
more or less the same way as ... previous . .. generations does not mean there was
nothing different in how they actually went about doing it." 30 Cosgrove, however,
does not help us elucidate the peculiarities, if any, of late nineteenth century " legal
science."
Cosgrove compounds the misleading nature of his portrait by adopting the
reductionist technique of explaining Dicey's life and work as derivative of three
unproblematic determinants: his laissez-faire politics; his Austinism; and his
conceptualising inclination. It is not surprising, therefore, that we end up with a
portrait which is essentially linear and reductionist-a one-dimensional portrait in
which all sense of contradiction is lost. It is not that these factors were unimportant
but rather that their meaning and influence on Dicey were far more complex than
Cosgrove's analytic framework would ever allow.

V
How might we better explain why Dicey's work took the forms it did? I would
tentatively suggest that one way of addressing this question is to explore: the specific
goals and methods of late nineteenth century legal science; the fears that the extention
of the franchise aroused among Liberals such as Dicey; and the place of Dicey in
nineteenth-century debates concerning the character of historical writing.
Cosgrove's emphasis on Dicey's yen to systematise is undoubtedly correct; but for
reasons which go deeper than Cosgrove acknowledges. The problem was practical,
intellectual and ideological. How could legal knowledge be acquired, organised and
applied given its ". . . daunting bulk, diversity and particularity?" 31 At the time
when Dicey was appointed to the Vinerian Chair the need for a more coherent legal
scholarship in England was intense. Only 36 years earlier, the Select Committee on
Legal Education set up by the House of Commons had concluded that " no Legal "
Education, worthy of the name of a public nature, is at this moment to be had in
28 W. Prest, " The Dialectical Origins of Finch's Law " (1977) C.L.J. 326, 327; B. J.
Shapiro, " Law and Science in 17th Century Englend " (1969) 21 StanfordLaw Review727.
29 D. Kennedy, " The Structureof Blackstone's Commentaries " (1979) 28 BuffaloLaw
Review 205, 231-234; S. F. C. Milsom, The Nature of Blackstone's Achievement(1981),
pp. 10-11.
30 R. W. Gordon, supra,note 15, p. 909 (discussing G. E. White's intellectual history of
Tort Law in America). Gordon points out that the meanings of " legal science " were as
manifold as allusions to the notion were numerous. In latter half of the 19th century these
earlier meanings often co-existed with more specific ones: Ibid. at p. 909, n. 21 and p. 910,
n. 23. Thus, jurists were by no means internally consistent nor were they necessarily
talking about the same thing when they referredto " legal science." Furthermore,subsisting
alongside a tradition which characterisedlaw as science was the " aristocratic " conception
of law: contemptuous of scientific principles; unlearned; which imposed dining as the only
obligation to entry into the profession; and left it to individual students to procure their
own instruction. See, e.g., E. Halevy, A History of the English People in the 19th Century
(1924 ed.), Vol. 1, pp. 20-41).
31 W. Prest, supra,note 28. See also supra,note 29, p. 9.
Jan. 1983] REVIEWS 107

either Englandor Ireland.32In particular,the Committeehad deploredthe lack of

universitylegaleducation;the dearthof coherentstudentlaw textswhichconcentrated
upon the enunciationand applicationof legal principlesratherthan a hypercritical
attention to legal technicalities;and the absence of jurists in England who might
promote a more scientificapproachto law and legal scholarship.This dire state of
affairswascontrastedwiththe impressivelegaleducationandscholarshipof Germany,
Franceand the United States.No wonderJohn Austin opined that, " Turningfrom
the study of the Englishto the study of the Roman law, you escape from the empire
of chaos and darknessto a world which seems by comparison,the region of order
and light." 33
For Dicey and his contemporariesthis " chaos and darkness" was compounded
by three factors. First, in that if the common law had a classificatorysystem at all,
it was rooted in the formsof action.Withtheircollapseand then theoreticalabolition
in 1875,the necessityto reconstructthe conceptualstructureof the Englishcommon
law became imperative.Secondly, English law was exported to the Colonies. In
particular,the need to presenta comprehensibleaccount of Englishlegal principles
to an Indian audienceencouragedjurists such as Markbyand Pollock to utilise the
classificatoryschemes and solutions offered by Continentallaw to manufacturea
view of Englishlaw as ". .. a collectionof principlescapableof being systematically
arranged,and resting, not on bare authority,but on sound logical deduction."34
Thirdly,the higherstandardsof law reportingset by the Councilof Law Reporting's
Law Reports,firstpublishedin 1865,heightenedratherthan lessenedthe feelingthat
the common law was voluminousand unstructured.Not surprisingly,in the period
circa 1870-1907, many of the new professionaljurists such as Dicey, Pollock,
Anson and Salmond saw it as their duty to produceexpositorystudent texts-the
dogmaticblacklettertextbooks that have come to epitomiseclassicalmodern legal
education, science and scholarship in England. As a self-conscious effort of
intellectual creativity it was unprecedentedin the history of the common law.
Moreover, the project was an Anglo-American-or, more accurately,an Oxford-
Harvard enterprise-embracing such leading American scholars as Langdell,
Holmes,Ames and Williston.35
However,the effortto constructan internallyconsistentand coherentlegal science
was not simply directedat practicalities.More complex and controversialaims were
also at workhere. Most important,perhaps,was the reformulationof the legal order
so that it rationalisedand sustainedthe individualistic(in the sociologicalor meta-
physicalsense) liberalismassociated,philosophically,with J. S. Mills's OnLiberty.36
Mills's attemptto delimit the perimeterwithin which the claims of society might be
exerted over the individual in moral and religious matters sought to maximise
individualliberty. The maximisationof individualliberty would only occur where
32 Reportfrom the Select Committeeon Legal Education,August 25, 1846, H. of C. 686.
SeealsoP. Stein," LegalTheoryandthe Reformof LegalEducationin Mid-19thCentury
England,"L'EducazioneGiuridicaII: Profili Storici (A. Guiliani and N. Picarda eds., 1979),
p. 185.
33 R. Campbell, Lectures in Jurisprudence(5th ed., 1885), p. 58, quoted by P. Stein
ibid. at p. 192.
34 Sir William Markby, Elements of Law (4th ed., 1889), p. X. See further, P. Stein,
"Continental Influences on English Legal Thought, 1600-1900" in La Formazione
Storica Del Diritto Moderno In Europa (Leo. S. Olschki ed., 1977), pp. 1105, 1120-1125
and C. H. S. Fifoot, supra,note 18,passim.
35 See R. W. Gordon, supra,note 15, p. 911. Although Langdell, Holmes and Ames did
not writeblacklettertreatises,the substanceof theirwork(or in Holmes'case, the bulk
of his The CommonLaw (1881)) was similar to that of their English counterparts.
36 The description of boundary theory that follows owes much to P S Atiyah, supra,
note 21 passim; G. Gilmore, TheDeath of Contract(Columbus, Ohio: Ohio State University
Press, 1974); R. W. Gordon, supra,note 15, 915-917; D. Kennedy, " Toward An Historical
Understanding of Legal Consciousness " Research in Law and Sociology (S. Spitzer ed.,
1980), Vol. 3, and supra, note 29 passim; C. W. McCurdy, " Justice Field and the Juris-
prudence of Government-Business Relations " (1975) 61 Journal of American History
970 and " Stephen J. Field and Public Land Law Development in California, 1850-1866"
(1976) Law and Society Review235.
108 THE MODERN LAW REVIEW [Vol. 46
power is exercised against a persons will, so as ". . . to prevent harm to others,
His own good ... is not a sufficient warrant.... Over his own body and mind, the
individual is sovereign." 37 " Self-regarding" behaviour is exempted from the
domain of legitimate coercive action; as Alan Ryan observes, " . . government may
only act by coercion in the area of other-regarding behaviour laid down in On
Liberty." 38 Thus, the object of the legal system was to maximise the " self-regarding "
behaviour of individuals consistent with the " self-regarding " behaviour of other
individuals. The legitimacy of classical legal science stemmed from its assertion that
it could define as precisely as possible the boundaries which delineated permissible
self-regarding behaviour (" rights ") from activities which interfered with the
" self-regarding" activities of others. The legal protection of that boundary by the
state was held out as the best definition of liberty. The coherence of this system
stemmed from its desperate attempts to segregate the " public " from the " private "
sphere and therefore public from private law; and from its assertion that a handful of
general principles covered all possible situations. " The task of the 'rule of law'
was to specify the scope and limits of autonomous conduct, through rules that
would be knowable (at least to persons advised by lawyers) in advance, and general,
so as to apply to all persons equally. Rules thus formulated would inform individuals
how far they could go without infringing the freedom of others, and would keep the
state in check as well by depriving its officers of discretion in handling claims of
infringement." A coherent, principled, general body of law was not only a practical
39
necessity but "... was a precondition of liberty and equality."
On Liberty was revered by many young intellectuals of Dicey's generation and none
more so than Dicey himself. In the minds of Dicey and others it came to be the
measure of political liberalism; the touchstone against which subsequent develop-
ments were to be assessed. On Liberty, argued Dicey, was the perfect embodiment of
"Benthamite Individualism " that is, the orthodoxy of the mid-century.40 Of course.
in the late nineteenth-century debates on state interventionism it was argued by those
advocating greater state intervention that those claims based on On Liberty's defence
of individual freedom had misconstrued the very character of freedom; and its
atomism was criticised. Successful attacks were mounted on the basic dichotomies
between individual and state, freedom and law and so on, which were surplanted by
positive rather than negative beliefs as to how legislation and other state activities
can expand individual freedom. Philosophically speaking, this critique owed much to
the ideas of philosophical idealism.41 Certainly by 1900 the contradictions and
shortcomings inherent in Mill's conception of individual liberty and therefore the
" "
boundary theory of law were coming to the fore. Yet the boundary theory of the
legal system and the scholarship and conception of legal science which it facilitated
and legitimated has retained an extremely tenacious hold over the minds of lawyers,
judges and jurists alike. One might hypothesise that the categories and forms of the
common law largely reproduce the values of individualistic liberalism. For example,
the form and content of the law tends to define relevant actors for legal purposes as
individuals. Because the form and content of the law tends to be inherently
individualised the expression of collective interests tends to be discouraged. Perhaps,
therefore, the strength of economic liberalism within the legal community is in part
reflected in, and a product of, the individualistic categories and forms that constitute
classic modern legal science. That resilience might also be explicable in terms of the
legal community's shared desire to conceive of their work as a learned science and
craft; and that the boundary theory of law places judges, lawyers and jurists in the
centre of government whilst protecting them from the charge of having usurped
Parliament.
37 J. S. Mill, " On Liberty " (1859) in Utilitarianism,(M. Warnock ed., 1962), p. 135.
See also, A. V. Dicey, "The Legal Boundaries of Liberty" (1868) 9 FortnightlyReview
(January 1)1.
38 A. Ryan, J. S. Mill(1975), p. 174.
39 R. W. Gordon, supra, note 15, p. 916.
40 A. V. Dicey, supra,note 2 (2nd ed.), pp. XXX, XXVII and 183.
41 See P. Clarke, Liberals and Social Democrats (1978); S. Collini, supra, note 13
passim and Liberalismand Sociology (1979).
Jan. 1983] REVIEWS 109
VI
A boundary theory of the legal order could not only accommodate the diverse needs
and claims of the legal community with the individual liberalism of Mill. For
Dicey, like many other " lights of Liberalism," the reconceptualisation of the law
became imperative as their fear of Socialism and the breakdown of ordered govern-
ment increased in the final decades of the nineteenth century. 42 To " old Liberals"
like Sidgwick, Stephen, Maine, Dicey and Bryce, the Liberal Party was trying to buy
working class votes with an ambiguous programme of land and social reform which
it was feared weakened the defences of property and the power of the propertied
classes. As a result, business and landowners united under the Conservative party's
banner; the Liberal party lost its crucial middle class support including the " old
Liberal" intellectuals.43
Dicey's preoccupation with "collectivism" and stability has occasionally been
acknowledged as an important influence on Law and Opinion. However, it also
possibly had as material an effect on Dicey's purely legal work, particularly his
writings on constitutional law. The conservative sentiments of " old Liberals" such
as Maine, Dicey and Bryce is clearly manifested in their increasing tendency to view
the United States as the model constitutional democracy. This aspect of Dicey's
thinking helps to illuminate the nature and form of his constitutional scholarship.44
Dicey defined the political problem of the age as ". . . how to form conservative
democracies ... to give to constitutions resting on the will of the people the stability
and permanence which has hitherto been found only in monarchical or aristocratic
states ... The plain truth is that... the American republic affords the best example of
a conservative democracy; and now that England is becoming democratic, respectable
Englishmen are beginning to consider whether the constitution of the United States
may not afford means by which.. . may be preserved the political conservatism dear
and habitual to the governing classes of England." 45The basic conservatism under-
lying Dicey's constitutional writings and his " Americomania " is exemplified in three
specific examples. First, his growing interest in the referendum as a device to mitigate
the full impact of parliamentary sovereignty. Secondly, Dicey attributed the stability
and conservatism of the United States to its legalistic spirit. In particular, he
envied the way in which the Rule of Law, which in Britain grew haphazardly through
custom, precedent and convention, was deified in America and enshrined within its
fundamental constitution. " There law rather than government held the federation
together, judges not politicians were the ultimate arbiters, and litigation had replaced
legislation. The prospect of a vast nation ran on the lines of a solicitor's office in
Lincoln's Inn must have been very satisfying to" Dicey and many of his legal
contemporaries.46 In short, Dicey and other "old Liberals" regarded American

42 The links between the aspirations of Liberal law scholars such as Austin, Maine,
Dicey and Bryce (who formed part of a new " intellectual aristocracy "), national politics
and the fears aroused by the extension of the franchise has begun to be explored. See
C. Harvie, TheLights of Liberalism: UniversityLiberals and the Challengeof Democracy,
1860-86, (1976); C. Kent, Brains and Numbers: Elitism, Comtism and Democracy in
Mid-VictorianEngland(1978); E. Ruben, " John Austin's Political Pamphlets 1824-1859 "
in Perspectivesin Jurisprudence(E. Attwool ed., 1977), pp. 20-41; J. Roach, " Liberalism
and the Victorian Intelligentsia " (1957) 13 CambridgeHistoricalJournal58; C. J. Dewey,
" Images of the Village Community: A Study of Anglo-Indian Ideology " (1972) 6 Modem n
Asian Studies 291.
43 In addition to the material, ibid. see J. Cornford, " The Transformation of Con-
servatism in the Late 19th Century" (1963) 17 VictorianStudies 35; H. Perkin, " Land
Reform and Class Conflict in Victorian Britain" in The Victoriansand Social Protest
(J. Butt and I. F. Clarke eds., 1973); H. A. Tulloch, " Changing Attitudes Toward the
United States in the 1880s "(1977) 20 HistoricalJournal825.
44 See H. A. Tulloch, ibid. The discussion on Dicey and America draws almost
exclusivelyupon Tulloch's fascinating essay.
45 Cited in H. A. Tulloch, supra,note 43, pp. 834-835.
46 Ibid. at p. 837. See also A. V. Dicey, supra, note 3, pp. 154, 161 and 197. Tulloch
points to the writings of Gladstone, Acton, Froude, Seely, Lecky, Maine and Dilke as well
as those of Bryce and Dicey, as instancing this detente, ibid. 840.
110 THE MODERN LAW REVIEW [Vol. 46
constitutionalismas the consummationof the boundary theory of the common
law.
In contrast, the French Droit Administratifwas flawed in that, possessing a
separatelaw which excludeadministratorsfrom the full rigours of common law, it
failed to sustain the legal equality which Dicey consideredthe prerequisitefor the
Rule of Law.47From this perspective,Dicey's Lawof the Constitutionwas an attempt
to reduceBritian'sunwrittenconstitutionto a partiallywrittencode. Dicey's Rule of
Law endeavouredto create a new proceduralnatural law or Bill of rights which
could be used to ensurethatlegalchangewas slow pacedand conservative. '
However, it would be wrong to reduce Dicey's constitutional writings to the
characterof his politics. For all its conservatism,much of Dicey's constitutional
writingalso reflectsa salutory concernwith the need to imposeeffectiveinhibitions
upon power and the defenceof the citizen from power's all-inclusiveclaims. In the
sense that the Rule of Law is synonymouswith civil liberties, then, of course, it
constitutes ". . . an unqualified human good." 48 But as has been pointed out
elsewhere, liberal legal science's conception of the Rule of Law: ". . . undoubtedly
restrainedpower, but it also preventspower's benevolentexercise.It createsformal
equality-a not inconsiderablevirtue-but it promotes substantive inequality by
creatinga consciousnessthat radicallyseparateslaw from politics,means from ends,
processesfrom outcomes.By promotingproceduraljustice it enablesthe shrewd,the
calculating,and the wealthyto manipulateits forms to their own advantage.And it
satisfies and legitimates an adversarial,competitive, and atomistic conception of
humanrelations."49It may be that, giventhe liberalindividualisticunderpinningsof
the Rule of Law, it will inevitably discouragethe pursuit of substantivejustice.
However,if those underpinningsare to be replaced,then criticsof the liberaltheory
of justice will have to take the problemof the Rule of Law seriously.They will have
to enter the terrain of justice and engage in the kind of moral and practical arguments
that, at least until recently, critics of liberalism have tended to eschew.50

VII
Dicey's Law and Opinion has suffered from being treated as simply a political
testament.This is unfortunatesince the positive dimensionsof this work have been
neglected as a result. What students of Dicey have failed to see is that Law and
Opinion was, in part, an important intervention in contemporary debates concerning
the character of historical writing. In essence, for most of the nineteenth century a
Whig tradition of historical writing predominated in England: that is, one akin to
imaginative literature, didactic, where the past was used to illustrate moral or
political questions to a wide audience. In the 1860s and 1870s English history began
to professionalise.51 Moreover, the methods of German scientific history became
increasingly influential amongst the new professional historians. The new scientific
history boasted objectivity, and a concern above all with fact-collection and the
accuracy of facts. History was studied for its own sake rather than as a political
weapon. Dicey was out of sympathy with the new history, for at least two reasons.
First, Stubbs and Freeman, two leading members of the new school, had disparaged
the legal profession. In particular, the historic role of lawyers was questioned; so
was the systematising characteristics of lawyers, especially when applied to realm
of history.52 Secondly, Dicey by temperament and inclination sympathised with the

47 Ibid. at p. 838.
48 E. P. Thompson, Whigsand Hunters(1975), p. 266.
49 M. J. Horwitz, " The Rule of Law! An Unqualified Good? " (1977) 86 Yale L.J. 561.
50 There are signs that this is beginning to occur. See, e.g. G. A. Cohen, " Freedom,
Justice and Capitalism "(1981) 126 New Left Review3; A. Hunt, " The Politics of Law and
Justice " in Politics and Power (D. Adlam et al. eds., 1981), Vol. 4, p. 3; and I. Taylor,
Law and Order(1981).
51 See G. P. Gooch, History and Historiansin the 19th Century(1959) and F. Gilbert,
"The Professionalisation of History in the 19th Century " in History (J. Higham et al.
eds., 1965), p. 320
52 See J. W. Burrow, A Liberal Descent: Victoriansand the English Past (1981), pp.
133-140.
Jan. 1983] REVIEWS 111

Whig tradition of historical writing. He regarded much of the new history as anti-
quarianism. These reasons in addition to Dicey's fear of collectivism, help to
explain the nature and form of Law and Opinion. It was a work in the Whig tradition.
It was in part a celebration of judge-made law and legal professionalism. It is
Bentham the legal philosopher that Dicey credits with creating a Utopia in England
single-handed. Like some lawyers' legal history, it was a medium through which the
claims of legal professionalism were advanced and legitimated as against the claims
of the majority. But Dicey's contempt for the new history was not simply a matter
of temperament. He was also repelled by the fact fetishism that characterised the
new history at its worst. He saw the need for historical work which investigated
economic and legal desiderata at a time when very little such work was emerging.
Thus, Law and Opinion was simultaneously an instrument of reactionary politics, a
celebration of law and lawyers and a pioneering attempt to establish the relationship
between law, economic thought and the origins of the modern democratic state as a
major concern of historical and legal scholarship. Despite its superficiality, the
historical and methodological questions it poses still constitute an important challenge
for lawyers and historians. Harold Laski recognised its worth. " It started" wrote
Laski, " a new (and valuable) tradition in English historiography." 53 But it was a
tradition which had much greater impact on historians than lawyers. Paradoxically,
in so far as Law and Opinion revealed the highly contingent and political character
of nineteenth-century law, it challenged many of the core assumptions and categories
of the liberal legal science that Dicey had been centrally concerned to construct and
defend. After all, Dicey's message was (to use Holmes's famous phrase) that: " The
life of the law has not been logic: it has been experience. The felt necessities of the
time, the prevalent moral and political theories, intuitions of public policy, avowed
or unconscious . . . have had a good deal more to do than the syllogism in deter-
54 No wonder Law and Opinion
mining the rules by which men are governed."
has had almost no impact on classic legal science in England. Taken to its logical
conclusion, Law and Opinion would have required a fundamental reconceptualisation
of the character and methods of classic legal science; whereas much of classic legal
scholarship has been concerned to legitimate and defend that tradition.55 Thus,
Dicey (like Holmes) simultaneously assisted in the construction of a liberal legal
science and demonstrated that its foundations were built on sand.
To end on a paradox should not surprise. Dicey, like most people, was not
internally consistent. In both Law and Opinion and Law of the Constitution he
transcended Austin's narrow definition of law and legal science in an effort to
locate the practical limits on law and state. Similarly, his devotion to Bentham did
not preclude his embracing natural rights theory. He could simultaneously argue
for the supremacy of Parliament and yet suggest that if an election is not called
before the enactment of the Home Rule Bill it would be unconstitutional. Although a
rigid dogmatist, Dicey was on occasions able to transcend this straitjacket and, no
doubt unwittingly, challenge the precepts he also sought to defend.
DAVID SUGARMAN*

THE ABUSE OF POWER: CIVIL LIBERTIES IN THE UNITED KINGDOM.

By PATRICIA HEWITT.[Oxford: Martin Robertson. 1982. xiv
and 295 pp. (incl. bibliography and index). Hardback: ?15.00;
paperback: ?4-95.]
PATRICIA HEWITT'S Britain is a wretched place. Parliamentand the courts
are no longer guardians of our freedom. The police are defenders of the
53 H. Laski, supra, note 1.
54 O. W. Holmes Jr., The CommonLaw(1881), p. 1.
55 Perhaps, the relative failure of P. Atiyah's, The Rise and Fall of Freedomof Contract,
supra, note 21 passim to unseat the classical model of contract law as taught and written
may, in part, be due to similardynamics.
* Reader in Law, Middlesex Polytechnic.