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J.W.F Allison

Dicey’s view of the English constitution as historical was traditional, but he promoted, and imported to that constitution, a history that was comparative, critical and modernist. His promotion of history as comparison affected his treatment of Magna Carta and his view of its importance to the rule of law. Provisions of Magna Carta provisions are compared and contrasted with Dicey’s exposition of the rule of law to explain his disdain for Magna Carta’s importance, to show the extent to which his exposition of the rule of law marked its modernisation in the English historical constitution, and to illustrate Diceyan history as comparison. The historical comparison serves as an illustration with which to consider the value of history as comparison – for Dicey in his treatment of Magna Carta and for normative interpretivists in drawing upon his rule of law.

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J.W.F Allison

In response to highly selective recent treatment, Dicey’s rule of law contribution is presented, not merely as coining or popularising the well-known phrase, but as multi-faceted. It was the express, methodical and comprehensive incorporation of the rule of law as one of two pervasive constitutional principles, which accorded with his various nineteenth-century expectations or understandings of the English constitution. They are distinguished as expectations of method, national specificity, remedial effectiveness, congruity of first principles, and historicity. The chapter explains to what extent Dicey’s exposition of the rule of law, relative to comparable earlier leading writings on the English constitution, answered those expectations. Dicey’s expectation of congruity of the constitution’s first principles is shown to have been of particular strength, importance and distinctiveness. It affords normative interpretivists good reason both to claim continuity with one prominent facet of Dicey’s contribution and to avoid suspicion of interpretivist distortion by unnecessarily overstating that continuity or by ignoring other such facets.